By petition filed on December 17, 2007, the petitioner-father, L. M., seeks an order of custody of the subject child, S (hereinafter, "S." or "the child"), born in 1995.

This custody petition follows several years of proceedings on neglect petitions filed against the child's mother, S.G. The neglect proceedings have all concluded and the court takes judicial notice of all orders and findings in those proceedings.

The first neglect petition, filed at about the time of the child's birth in 1995, resulted in a finding of neglect against the respondent-mother based on proof that S tested positive for cocaine at birth. At that time, S and several of her siblings were placed in foster care and they remained there for nearly three years until the respondent-mother successfully completed required services, at which time it was deemed safe for the children to be returned to her.

The respondent-mother subsequently gave birth to four additional children from 1997 to 2004. In 2005, a second set of child neglect petitions was filed against the mother alleging that she abused cocaine and that she left the children home alone for days at a time without proper adult supervision and with no provisions. S and four of her siblings, were placed in foster care. A fifth sibling was placed in the care of his father, who is not a party to this action. Neglect findings were entered against the mother on her consent on September 14, 2005. Following the respondent-mother's completion of required services in late 2007, the children who were placed in foster care were trial-discharged to the respondent-mother. The fifth sibling remains with his father, who was recently granted joint custody with the respondent-mother. The respondent-mother gave birth to an additional child in January, 2007, and although there was a consent child neglect finding regarding that child as well, he has never been removed from the respondent-mother's care.

S has had visitation with her father during these proceedings. Visits were initially supervised as a result of allegations that the father had an obsession with aliens and outer space, that he allowed the child to drive his car while the child was sitting on his lap, and that he told [*2]the child to lie to her foster parent about losing her eyeglasses. Since S went home to her mother on trial discharge in 2007, the petitioner-father has had liberal, unsupervised, overnight visits with her.

Discussion

The petitioner-father and the respondent-mother began an intimate relationship in 1994, resulting in the birth of S. They abused drugs together but the petitioner-father ceased substance abuse many years ago and has since been a productive working member of society, being employed with the New York City Transit Authority as a train conductor. The respondent-mother continued to abuse drugs. She has a lengthy history of drug abuse and inadequate supervision and guardianship of her children.

The relationship between the petitioner-father and the respondent-mother became extremely turbulent. The parents remain on unfriendly terms and do not communicate effectively regarding their child's needs.

The respondent-mother's behavior has been detrimental to S. She deliberately kept S away from the petitioner-father for the majority of the child's life. The evidence shows that the petitioner-father did not know of S's birth until S was at least eight years old. He was aware that the respondent-mother claimed to be pregnant with his child, but he did not believe her. S testified that she did not know who her father was until she was ten years old.

S has special educational needs that were not addressed by the respondent-mother. The evidence showed that the respondent-mother exhibited an utter lack of concern for S's reading deficits. Despite being told that S had serious reading difficulties, she behaved as if she were completely unaware of the problem and, for years, did nothing to address it. The respondent-mother testified that she never did homework with S. She could not even remember the grade from which S was left back.

The respondent-mother's current life is unstable. She testified that she has plans to move to Long Island. Such a move would uproot her children once again and S strenuously objects to it. The respondent-mother's current living space, a three-bedroom apartment occupied by herself and her nine children, including two adult children who were not subjects of any family court proceedings, is in chaos. S testified to frequent arguments between her mother and the father of two of her siblings. This on-going strife cannot be in S's best interest. At a minimum, the situation makes S quite uncomfortable.

To her credit, the respondent-mother has remained drug free for some time and has cooperated with a counseling program. She was reunited with her children on a trial discharge basis in 2007. Recently, she has become gainfully employed as a substance abuse counselor trainee. However, the court finds that the petitioner-father is able to provide S with better care.

The petitioner-father is much better able to address S's special educational and emotional needs than the respondent-mother is. He regularly assisted S with her homework and worked very closely with her to improve her reading. He will be able to provide her with needed structure, guidance, and a stable home. The petitioner-father's home is clearly more suitable for S than the respondent-mother's. The petitioner-father resides with his fiancée in a two bedroom apartment a few blocks away from the respondent-mother. In her father's home, S has her own [*3]room and space for her possessions. Such space is sorely lacking at her mother's home. Additionally, the petitioner-father is quite capable of providing financially for S.

The petitioner-father, it must be noted, has not been a paragon of parental responsibility. He abused drugs with the respondent-mother at the time S was conceived. However, the evidence establishes that the petitioner-father ceased substance abuse many years ago and has since been a productive working member of society. When he became aware that he was S's father, the petitioner-father appeared in family court seeking custody of S and he satisfactorily addressed his substance abuse problem and engaged in services necessary to improve his parenting skills.

An award of child custody must be based on the best interests of the child. Friederwitzer v. Friederwitzer, 55 NY2d 89. In determining the best interests, factors to be considered by the court include the quality of the home environment and the parental guidance that the custodial parent is able to provide for the child. The court should also consider the financial status of the parents, their ability to provide for the child's emotional and intellectual development, the child's preference, and the ability of the child to live with siblings. (see, Friederwitzer v. Friederwitzer, 55 NY2d 89; Eschbach v. Eschbach, 56 NY2d 167; LaBow v. LaBow, 59 NY2d 956; Matter of Louise E.S. v. Stephen S., 64 NY2d 946).

While both parents have led lives filled with some level of dysfunction, there is no evidence that either parent is, at this time, unable to provide basic care for S. The court recognizes that S has resided in apparent safety for the past year in the care of the respondent-mother on a trial discharge basis under the supervision of ACS. Under ordinary circumstances, the court would seek to maintain the child in the home in which she has been residing. (See, Matter of Louise E.S. v. W. Stephen S., 64 NY2d 946.) But the respondent-mother's unstable life, her inability to understand how her behavior has harmed her children, and her willingness to deprive S of her relationship with her father are of serious concern to the court. Such deficiencies in parenting ability, although they do not create an unsafe environment for S, are evidence that the respondent-mother is unsuited to the difficult task of providing S with moral and intellectual guidance. (Rohan v.Rohan, 213 AD2d 804, 805; See, Acevedo v. Acevedo, 200 AD2d 567).

Interference with the relationship between a parent and child is "so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent." Gago v. Acevedo, 214 AD2d 565,566. In addition to depriving S of the love and affection of her father for the first eight to ten years of her life, the respondent-mother, by failing to identify the father to child welfare authorities, caused S to be unnecessarily placed with strangers in foster care during the pendency of the neglect actions.

S is, by all accounts, a lovely, well-adjusted child who dearly loves both her parents despite the numerous hardships she has endured during her brief life. She testified bravely, in the presence of her mother, that while she loves her mother, she prefers to live with her father who, she feels, is better suited to address her needs. S testified that she prefers to visit with her siblings and not to live with them. Although the child's wishes are not determinative, they are entitled to great weight. McMillan v. Rizzo, 31 AD3d 555.

In assessing the history of behavior of both parents and their fitness to care for the child for the purpose of determining this custody petition, it is crystal clear that the petitioner-father is [*4]far better suited to care for S on a full-time basis than the respondent is.

Based upon the totality of the circumstances, including the stated position of the child, it is hereby:

ORDERED, that custody of the child, S, is granted to the petitioner-father, L.M. It is further

ORDERED, that the respondent-mother is granted an order of liberal visitation with the child to include, at a minimum, two overnight weekend visits monthly and weeknight visits on a schedule to be arranged by the parties with the assistance of the attorney for the child; and

ORDERED, as a component and not a condition of this order, that L.M. and S.G. are to engage in family mental health counseling with S.

This constitutes the decision and order of the court.

ENTER:

_____________________________________

EDWINA G. RICHARDSON-MENDELSON

Judge of the Family Court

Dated:Jamaica, New York

February 9, 2009