| Porcello v Porcello |
| 2011 NY Slip Op 00474 [80 AD3d 1131] |
| January 27, 2011 |
| Appellate Division, Third Department |
| Peter C. Porcello, Appellant-Respondent, v Anna Porcello,Respondent-Appellant. |
—[*1] Sherri L. Vertucci, P.C., Amsterdam (Sherri L. Vertucci of counsel), forrespondent-appellant. Elana Jaffe Tastensen, Saratoga Springs, attorney for the child.
Egan Jr., J. Cross appeals from a judgment of the Supreme Court (Cortese, J.), enteredOctober 30, 2009 in Montgomery County, granting, among other things, plaintiff a divorce andprimary physical custody of the parties' child to defendant, upon a decision of the court.
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) were married in 2004and are the parents of a daughter (born in 2007). Within weeks of the child's birth, the parties'relationship deteriorated to the point that the mother filed a family offense petition and a petitionseeking custody of the child. The parties physically separated, with each moving to theirrespective parents' homes. The father then commenced the instant action for divorce, which wasconsolidated with the mother's pending Family Court matters.
During the pendency of these proceedings, in March 2008, Family Court issued a temporaryorder granting primary physical custody of the child to the mother, with the father havingvisitation every Monday and Wednesday during the daytime hours, and an overnight visitationevery other Saturday. In July 2008, after the father's work schedule changed, the [*2]parties modified the temporary order without court intervention,such that, in every two-week cycle, the father would have five overnight visits with thechild—every Wednesday and a three night weekend (Friday, Saturday and Sunday) everyother week, in addition to a daytime visit every Monday—and the mother would have theremaining nine overnight visits.[FN*]
Prior to trial, the parties were able to reach an agreement with regard to all issues exceptphysical custody, parenting time and child support. Following a trial that took place over twodays in January and February 2009, Supreme Court issued a decision and order in June 2009granting, among other things, primary physical custody of the child to the mother and adoptingthe custody arrangement previously agreed-upon by the parties in July 2008. A judgment ofdivorce incorporating the decision and order, as well as the parties' written agreement, wasthereafter entered. The parties now cross-appeal.
We first consider the father's argument that Supreme Court's custody determination, insofaras it failed to also award him overnight visits each Tuesday, lacks a sound and substantial basisin the record. "The principal concern in any child custody dispute is the best interests of the child,to be determined by reviewing such factors as maintaining stability for the child, the child'swishes, 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 parentto foster a relationship with the other parent" (Moor v Moor, 75 AD3d 675, 676 [2010] [internal quotation marksand citations omitted]; see Matter of Micah NN. v Kristy NN., 79 AD3d 1188, 1189[2010]; Matter of Gast v Gast, 50AD3d 1189, 1189 [2008]). An informal custody arrangement reached by the parties may alsobe relevant in making a custody determination (see Matter of Young v Collins, 37 AD3d 1014, 1015 [2007]).
Here, we find that Supreme Court properly considered the best interests of the child infashioning the custody and visitation order. While the relief sought by the father would equalizethe number of overnight visits each party would have with the child, the court determined thatsuch a division was not appropriate under the circumstances in this case. The record reveals thatthe father is, at times, unable to set aside his ill feelings toward the mother and cooperate withher in connection with caring for their child. Instead of considering the best interests of the child,the father testified that even if he is unable to care for the child during his sought after parentingtime, he would rather the child be cared for by a relative than the mother. For example, onWednesdays, during the father's parenting time, the child is cared for by the paternal grandmotherwhile he works. The father testified that if the child was sick on a Wednesday and the mothertook time off from her own work to care for the child, he would not permit the mother to care forthe child, even though he could not care for the child. The father also conceded that on oneparticular Wednesday in 2008, the day before the Thanksgiving holiday, he initially denied themother's request for more time with the child, even though he was at work, but then agreed onlyif he received extra time with the child the next day.[*3]
On the other hand, the mother, who has served as theprimary caregiver for most of the child's young life and has adjusted her work schedule to allowher to spend all of her parenting time with the child, has been willing to cooperate with the fatherby attempting to arrange a visitation schedule that accommodates the father's work schedule, andhas continuously fostered the child's relationship with him. When the child is with the mother,the child has a bedroom of her own, with the father's picture on the wall. The mother hascompiled a family photo album for the child that includes pictures of the father. Finally, while itis true that the schedule earlier fashioned by the parties and continued by Supreme Courtprovides the father with five overnight visits compared to the mother's nine over a two-weekcycle, under this schedule, the father actually sees his daughter nine days out of every 14. Inaccording the appropriate deference to the court's factual findings, we decline to disturb thecustodial determination, as it is supported by a sound and substantial basis in the record (seeMatter of Micah NN. v Kristy NN., 79 AD3d at 1189-1190; Moor v Moor, 75 AD3dat 676-677; Matter of Gast v Gast, 50 AD3d at 1190).
Next, we are unpersuaded that Supreme Court erred in permitting the mother's counsel toinquire about the parties' acromonious relationship and certain disagreements regardingscheduling and care for the child. The court "is afforded broad discretion in establishing theparameters of the proof at trial" (Matterof Gardner v Gardner, 69 AD3d 1243, 1244 [2010]), and such evidence is relevant to adetermination as to what custody arrangement is in the child's best interests and addresses theparties' "ability to guide and provide for the child's overall well-being, and the willingness ofeach parent to foster a relationship with the other parent" (Moor v Moor, 75 AD3d at 676[internal quotation marks and citations omitted]).
We are likewise unpersuaded that Supreme Court disregarded the position of the attorney forthe child, who opined in his written summation that the child's best interests would be served bygranting the father overnight visitation on Tuesdays. While the position of the attorney for thechild is a factor to be considered, it is not determinative (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407[2010]; Munson v Lippman, 2AD3d 1252, 1254 [2003]; Matter of Perry v Perry, 194 AD2d 837, 838 [1993]).Although not required, it would have been appropriate for Supreme Court to specificallyreference the position of the attorney for the child in its decision. Notwithstanding the court'sfailure to do so, we are satisfied that it considered all of the relevant factors in reaching itsconclusion, which is supported by a sound and substantial basis in the record.
We are also unpersuaded by the mother's argument that Supreme Court erred in failing togrant child support retroactive to either the date the Family Court petitions were filed, or one ofseveral dates prior to the court's decision. While an award of child support is to be "effective asof the date of the application therefor" and should be made retroactive to such date (DomesticRelations Law § 236 [B] [7] [a]; see McAuliffe v McAuliffe, 70 AD3d 1129, 1133 [2010];Daniels v Daniels, 202 AD2d 862, 864 [1994]), the mother concedes that a pendente liteapplication for child support was not made prior to trial, and the record does not reveal anyapplication for child support in connection with her Family Court proceedings.
Peters, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: The exact schedule agreed to bythe parties is as follows: every two-week cycle, the father has parenting time Monday from 8:00a.m. through 8:00 p.m., Wednesday from 8:00 a.m. until Thursday at 11:30 a.m., Friday from6:30 p.m. until the following Monday at 8:00 p.m., and Wednesday from 8:00 a.m. untilThursday at 11:30 a.m. The cycle then repeats itself commencing the following Monday at 8:00a.m.