The Third Department upheld Family Court’s finding father’s incarceration justified a modification of custody and the grant of sole custody to the mother:
Initially, we note the absence of anything in the record to indicate that, but for the father’s incarceration, joint custody would not have continued to be appropriate. Nonetheless, the father’s incarceration presented logistical restrictions on the parties’ ability to effectively and efficiently communicate with each other, rendered shared physical custody impossible and generally created limitations on the father’s ability to fulfill his obligations as a custodial parent … . In this regard, the mother testified that, while the father was incarcerated, she made all of the decisions regarding the child and the father did not initiate any contact with her about the child. Notwithstanding the father’s testimony that he had liberal access to a telephone and email, the mother was unaware that she could call him and testified that it normally took him at least one day to respond to her emails.
Additionally, the father acknowledged that the mother could not reach him while he was at work five days a week for several hours each day and that he had, at times, exhausted his monthly allotted telephone time. Further, the father was unable to identify the child’s medical provider or teacher, which reflected his limited involvement in the child’s daily life. After considering the appropriate factors relevant to custody determinations … and according deference to Family Court’s ability to observe the witnesses and assess their credibility …, we find a sound and substantial basis for that court’s determination that an award of sole physical and legal custody to the mother was in the child’s best interests… . Matter of Breitenstein v Stone, 514316, 3rd Dept 12-19-13