Bessette v. Pelton, 29 A.D.3d 1085 (N.Y. App. Div. 2006). · Go Syfert
Bessette v. Pelton, 29 A.D.3d 1085 (N.Y. App. Div. 2006). Cases Citing This Book View Copy Cite
27 citation events (27 in the last 25 years) across 1 distinct court.
Strongest positive: People v. Signor (nyappdiv, 2019-06-06)
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Signor
N.Y. App. Div. · 2019 · confidence medium
Defendant failed to preserve his objection to the manner in which sentencing proceedings were conducted, and we perceive no reason to take corrective action in the interest of justice ( see CPL 380.50 [1]; People v Wallace , 29 AD3d 1085, 1085 [2006], lv denied 7 NY3d 796 [2006]).
discussed Cited as authority (rule) Button v. Button
N.Y. App. Div. · 2018 · confidence medium
We first note that it was unnecessary for Supreme Court to consider whether a change in circumstances had occurred because the temporary custody order was issued without the benefit of a full plenary hearing ( see S.L. v J.R. , 27 NY3d 558, 563-564 [2016]; Matter of Bessette v Pelton , 29 AD3d 1085, 1087 [2006]) and, further, did not address holiday and vacation schedules.
discussed Cited as authority (rule) People v. Gray
N.Y. App. Div. · 2017 · confidence medium
Although defendant argues that he was denied due process at the time of sentencing because County Court posed certain questions to him during his statement to the court, defendant raised no objection in this regard at the time of sentencing and, therefore, this issue is unpreserved for our review (cf. People v Wallace, 29 AD3d 1085, 1085 [2006], lv denied 7 NY3d 796 [2006]).
discussed Cited as authority (rule) People v. Morales-Lopez
N.Y. App. Div. · 2013 · confidence medium
Assuming, without deciding, that such waiver does not also encompass County Court’s alleged violation of CPL 380.50, defendant failed to preserve this argument by registering an appropriate objection at the sentencing hearing — at which time the asserted omission could have been remedied (cf. People v Cianfarani, 81 AD3d 998, 999 [2011]; People v Wallace, 29 AD3d 1085, 1085 [2006], lv denied 7 NY3d 796 [2006]).
discussed Cited as authority (rule) People v. Morales-Lopez
N.Y. App. Div. · 2013 · confidence medium
Assuming, without deciding, that such waiver does not also encompass County Court’s alleged violation of CPL 380.50, defendant failed to preserve this argument by registering an appropriate objection at the sentencing hearing — at which time the asserted omission could have been remedied (cf. People v Cianfarani, 81 AD3d 998, 999 [2011]; People v Wallace, 29 AD3d 1085, 1085 [2006], lv denied 7 NY3d 796 [2006]).
discussed Cited as authority (rule) Quinones v. Gonzalez
N.Y. App. Div. · 2010 · confidence medium
The temporary custody order issued during the pendency of this proceeding without the benefit of a full plenary hearing is only one factor relevant to the ultimate determination of custody (see Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]; Matter of Anson v Anson, 20 AD3d at 603-604 ; Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]).
discussed Cited as authority (rule) Moore v. Fink
N.Y. App. Div. · 2010 · confidence medium
Accordingly, the instant proceedings involve an initial custody determination, and Family Court’s “change of circumstances” analysis is inapplicable (Matter of Anson v Anson, 20 AD3d 603, 603-604 [2005], lv denied 5 NY3d 711 [2005]; see Matter of Smith v Smith, 61 AD3d 1275, 1276 [2009]; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]).
discussed Cited as authority (rule) Siler v. Wright
N.Y. App. Div. · 2009 · confidence medium
Due to Family Court’s ability to evaluate the testimony and assess the credibility of witnesses, its factual findings are accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Gravelding v Loper, 42 AD3d 740, 742 [2007]; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]).
discussed Cited as authority (rule) Winston v. Gates
N.Y. App. Div. · 2009 · confidence medium
While Family Court did not set forth a detailed analysis of its reasoning, our review of the record enables us to make the necessary findings which support a determination that the mother’s relocation with the child—and, accordingly, the denial of the father’s petition for modification of primary residential custody—was in the child’s best interests (see id. at 741 ; Matter of Bobroff v Farwell, 57 AD3d 1284, 1285 [2008]; Matter of Bessette v Belton, 29 AD3d 1085, 1087 [2006]; Matter of Anson v Anson, 20 AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]).
discussed Cited as authority (rule) Brian JJ. v. Heather KK.
N.Y. App. Div. · 2009 · confidence medium
In reviewing the father’s petitions, Family Court followed a best interests analysis (see Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; Matter of Bessette v Pelton, 29 AD 3d 1085, 1087 [2006]) and properly considered, among other things, “the quality of the respective home environments” and each parent’s “relative fitness and ability to provide for and guide the child’s intellectual and emotional development” (Matter of Russo v Russo, 257 AD2d 926, 927 [1999]).
discussed Cited as authority (rule) In re Aaliyah Q.
N.Y. App. Div. · 2008 · confidence medium
Thus, according due deference to Family Court’s opportunity to judge the witnesses’ credibility (see Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]), we find that there was sufficient evidence to support Family Court’s determination that respondent neglected the subject children by using excessive corporal punishment.
discussed Cited as authority (rule) Khaykin v. Kanayeva
N.Y. App. Div. · 2008 · confidence medium
Temporary custody orders issued without the benefit of a full plenary hearing are only one factor relevant to the ultimate determination (see Matter of Bessette v Belton, 29 AD3d 1085, 1087 [2006]; Matter of Anson v Anson, 20 AD3d at 603-604 ; Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]).
discussed Cited as authority (rule) Treider v. Lamora
N.Y. App. Div. · 2007 · confidence medium
Because Family Court is in the best position to evaluate the credibility of the witnesses, its factual findings will be accorded great deference (see Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]).
cited Cited as authority (rule) Dickinson v. Woodley
N.Y. App. Div. · 2007 · confidence medium
Matter of Hissam v Mackin, 41 AD3d 955, 956 [2007], lv denied 9 NY3d 809 [2007]; Matter of Young v Collins, supra; Matter of Bessette v Belton, 29 AD3d 1085, 1087 [2006]).
discussed Cited as authority (rule) Colwell v. Parks
N.Y. App. Div. · 2007 · confidence medium
Our authority in custody matters is as broad as that of Family Court, however, we accord def erence to that court’s assessment of witness credibility, and its factual findings will be disturbed only where they lack a sound and substantial basis in the record (see Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]; Matter of De Losh v De Losh, 235 AD2d 851, 853 [1997], lv denied 89 NY2d 813 [1997]).
discussed Cited as authority (rule) Hissam v. Mackin
N.Y. App. Div. · 2007 · confidence medium
Where, as here, the existing custody arrangement resulted from an informal agreement of the parties, that agreement is “simply a factor relevant to the ultimate determination” (Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]; see Matter of Wiedenkeller v Hall, 37 AD3d 1033, 1034 [2007]; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]; Matter of Anson v Anson, 20 AD3d 603, 603-604 [2005], lv denied 5 NY3d 711 [2005]).
discussed Cited as authority (rule) Filippelli v. Chant
N.Y. App. Div. · 2007 · confidence medium
Factors to be considered in ascertaining the custodial arrangement most likely to promote the child’s best interests include “maintaining stability for the child, the child’s wishes, the home environment with each parent, each parent’s past performance, relative fitness, ability to guide and provide for the child’s overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Matter of Smith v Miller, 4 AD3d 697, 698 [2004]; see Matter of Eck v Eck, supra at 1083; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]).
discussed Cited as authority (rule) Yette v. Yette
N.Y. App. Div. · 2007 · confidence medium
In fight of all these factors, Family Court’s decision that the child’s interests are presently best served by an award of sole legal and physical custody to the mother with scheduled daytime visitation to the father is supported by a sound and substantial basis in this record (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Hildenbrand v Hildenbrand, 37 AD3d 981, 982 [2007]; Matter of Hostetler v Montanye, 30 AD3d 720, 722 [2006], lv denied 7 NY3d 710 [2006]; Matter of Bessette v Belton, 29 AD3d 1085, 1087 [2006]).
examined Cited as authority (rule) Hildenbrand v. Hildenbrand (3×)
N.Y. App. Div. · 2007 · confidence medium
In reaching that determination, a myriad of factors were considered, including the “relative stability and financial situation of the respective parents” (Matter of Farnham v Farnham, 252 AD2d 675, 676 [1998]), their ability to foster and guide the child’s emotional and intellectual development and their flexibility to nurture and provide for a meaningful relationship with the other parent (see Matter of Hostetler v Montanye, supra at 721; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]; Matter of Defayette v Defayette, supra at 821).
cited Cited as authority (rule) Young v. Collins
N.Y. App. Div. · 2007 · confidence medium
An informal custody arrangement may also be a relevant element in the overall analysis (see Matter of Bessette v Belton, 29 AD3d 1085, 1087 [2006]).
cited Cited as authority (rule) Meier v. Key-Meier
N.Y. App. Div. · 2007 · confidence medium
Matter of Bessette v Pelton, 29 AD3d 1085,1087-1088 [2006]).
discussed Cited as authority (rule) La Pointe v. La Pointe
N.Y. App. Div. · 2006 · confidence medium
According due deference to Family Court’s unique opportunity to assess the demeanor and credibility of all witnesses at the hearing, particularly the parties (see Matter of Hostetler v Montanye, supra at 722; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]; Matter of Adenaike v Adenaike, 12 AD3d 958, 959 [2004]; Kaczor v Kaczor, 12 AD3d 956, 958 [2004]), we find no reason to disregard its credibility determinations and find a sound and substantial basis in the record to support its determination (see Matter of Hostetler v Montanye, supra; Matter of Adenaike v Adenaike, supra; Matter o…
discussed Cited "see" Roefs v. Roefs
N.Y. App. Div. · 2012 · signal: see · confidence high
Initially, Family Court correctly determined that because the custody arrangement ordered by Supreme Court in the divorce action followed from a plenary hearing and “reflects a considered and experienced judgment concerning all of the factors involved” (Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; see Matter of Bessette v Felton, 29 AD3d 1085, 1087 [2006]; Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]), these proceedings should be evaluated under the standard applicable to a modification of custody.
discussed Cited "see" Roefs v. Roefs
N.Y. App. Div. · 2012 · signal: see · confidence high
Initially, Family Court correctly determined that because the custody arrangement ordered by Supreme Court in the divorce action followed from a plenary hearing and “reflects a considered and experienced judgment concerning all of the factors involved” (Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; see Matter of Bessette v Felton, 29 AD3d 1085, 1087 [2006]; Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]), these proceedings should be evaluated under the standard applicable to a modification of custody.
Retrieving the full opinion text from the archive…
In the Matter of Paige Bessette
v.
Arthur W. Pelton III, (And Another Related Proceeding.)
Appellate Division of the Supreme Court of the State of New York.
May 11, 2006.
29 A.D.3d 1085
Lahtinen.
Cited by 20 opinions  |  Published
Lahtinen, J.

Appeal from an order of the Family Court of Rensselaer County (Leaman, J.), entered June 14, 2004, which, inter alia, dismissed petitioner’s application, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

The parties started living together in 1998, they had a child in January 2000 and terminated their relationship in May 2000. After they separated, petitioner (hereinafter the mother) was awarded custody of the child, with respondent (hereinafter the father) receiving visitation every other weekend. In March 2002, the father filed a modification petition seeking custody of the child on the ground that the mother’s living conditions were unsuitable. In April 2002, the parties appeared before Family Court (Griffin, J.), and, electing to proceed without counsel, they stipulated on the record to an order of joint legal custody, with primary physical custody with the father, liberal visitation for the mother, and the parties would be “free to change the physical residence of the child as they can agree upon in the future, depending upon [the mother’s] living arrangement.” The Law Guardian prepared the order, which stated in part that “the parties shall change the physical residence of the child at such time as the residence of [the mother] changes.”

In June 2002, the mother filed a petition for a change of physical custody since her living conditions had allegedly improved, but that petition was dismissed when neither party appeared on the return date. Nevertheless, the parties ostensibly informally agreed to a visitation schedule whereby they essentially shared physical custody and this agreement worked until June 2003, when they both filed petitions; the mother seeking sole legal and physical custody, and the father alleging visitation violations by the mother. A temporary order, which is not in the record, was reportedly entered in July 2003 keeping physical custody with the father. Various proceedings ensued until May 2004, when a four-day hearing was held. The witnesses included Michelle Marte, a court-appointed evaluator, who testified about her meetings with the parties and her recommendation that the[*1087] father continue to have primary physical custody. The Law Guardian indicated that he favored placing primary physical custody with the mother. Family Court rendered a detailed decision in which it concluded that the best interests of the child would be advanced by joint legal custody, with primary physical custody to the father and liberal visitation provisions for the mother. The mother appeals.

We initially note that “[informal custodial arrangements and even temporary custody orders, issued without the benefit of a full plenary hearing, are simply a factor relevant to the ultimate determination” (Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]). Here, the language of the April 2002 order and the in-court stipulation upon which it was based are not consistent and, moreover, within two months of that order, the parties entered into an informal arrangement of shared physical custody. We find the April 2002 order and the July 2003 temporary order of little significance in resolving this case (see Matter of Anson v Anson, 20 AD3d 603, 603-604 [2005], lv denied 5 NY3d 711 [2005]).

What is significant, however, as it is in all cases involving custody and visitation, is the best interests of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; Matter of Peet v Parker, 23 AD3d 940, 941 [2005]). Factors germane to determining what custodial arrangement will be in the best interests of the child include “ ‘maintaining stability for the child, the child’s wishes, the home environment with each parent, each parent’s past performance, relative fitness, ability to guide and provide for the child’s overall well-being, and the willingness of each parent to foster a relationship with the other parent’ ” (Kaczor v Kaczor, 12 AD 3d 956, 958 [2004], quoting Matter of Smith v Miller, 4 AD3d 697, 698 [2004]). “[Although this Court’s authority in custody matters is as broad as that of Family Court, we nonetheless afford deference to Family Court’s opportunity to assess witness credibility and ‘will not disturb those findings unless they lack a sound and substantial basis in the record’ ” (Matter of Anson v Anson, supra at 604, quoting Matter of De Losh v De Losh, 235 AD2d 851, 853 [1997], lv denied 89 NY2d 813 [1997]).

Here, as fully explained by Family Court and amply supported by the record, each party had strengths and weaknesses. For example, Family Court discussed the father’s lapse of judgment in leaving the child with a 13-year-old babysitter while he went out on a night in December 2003 and eventually became intoxicated, damaged property and was arrested. The mother’s smoking in the presence of the child, who has asthma, was[*1088] considered. Each parent is currently employed and able to draw upon a family support network. The child had done well during her most recent year with her father and was attending a daycare program where she was excelling. There was evidence that the mother attempted to manipulate the child to say negative things about the father and she terminated the child’s health insurance (a detriment to the child) in an attempt to punish the father. On the other hand, there was proof that the father may have engaged in some inappropriate physical contact of the mother. Also, as previously stated, the court evaluator and Law Guardian offered different proposals regarding custody. Clearly, this was a difficult case. Under such circumstances, the trial court’s observations of the demeanor of the witnesses and its credibility determinations necessarily carry weight. After reviewing the record, we find that Family Court’s decision is supported by the proof therein and we are unpersuaded that its decision should be set aside.

Crew III, J.P., Peters, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed, without costs.