Elmer DD. v. Judy EE. — 120 A.D.2d 889

Majority

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In the Matter of Elmer DD., Appellant, v Judy EE., Respondent.

Appeal from an order of the Family Court of Tioga County (Siedlecki, J.), entered February 24, 1984, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ infant child, and awarded custody of the child to respondent.

It is apparent from Family Court’s decision that, contrary to petitioner’s claim, the court did not rely upon a prima facie right of custody in awarding custody to the mother. Rather, the court found "[t]hat, based upon the totality of circumstances and the child’s best interests, the respondent is more fit than the petitioner to serve as the child’s custodial parent on a permanent basis”. Nor do we agree with petitioner’s contention that Family Court erred in failing to find respondent unfit due to her below-average intelligence, lack of education and need of assistance in learning parenting skills. There is ample proof in the record that both parties require training and assistance to enable them to provide adequate care for the infant and, as found by Family Court, respondent has demonstrated the ability to learn the necessary parenting skills. We see no basis for disturbing Family Court’s award of custody to respondent, with reasonable visitation to petitioner. Petitioner’s concerns about respondent’s ability to provide adequate

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care for the child have been met by the court’s provision directing the local agency to monitor the situation and provide necessary services for the mother and child, together with the further provision directing respondent to cooperate with the local agency.

Order affirmed, without costs. Kane, J. P., Casey, Mikoll and Levine, JJ., concur.