| Lubit v Lubit |
| 2009 NY Slip Op 06652 [65 AD3d 954] |
| September 24, 2009 |
| Appellate Division, First Department |
| Elana B. Lubit, Respondent, v Roy H. Lubit,Appellant. |
—[*1] Segal & Greenberg LLP, New York (Philip C. Segal of counsel), for respondent. Michele Tortorelli, New York, Law Guardian.
Judgment, Supreme Court, New York County (Saralee Evans, J.), entered September 19,2007, after a nonjury trial, which, to the extent appealed from, as limited by the briefs, grantedplaintiff custody of the parties' children and denied defendant's request for joint custody,unanimously affirmed, without costs.
The court's determination awarding custody to the mother with liberal visitation privileges tothe father was based on a thoughtful assessment of the testimony of the parties and thecourt-appointed forensic expert, and has a sound and substantial basis in the record (seeEschbach v Eschbach, 56 NY2d 167 [1982]; cf. Mohen v Mohen, 53 AD3d 471 [2008], lv denied 11NY3d 710 [2008]; Matter of Rebecca B., 204 AD2d 57 [1994], lv denied 84NY2d 808 [1994]). The evidence demonstrates that the acrimony and mistrust that marks theparties' relationship makes joint custody a nonviable option (see Braiman v Braiman, 44NY2d 584, 589-590 [1978]; Trapp v Trapp, 136 AD2d 178, 181-183 [1988]). An attemptat joint custody that the parties negotiated failed when appellant unreasonably insisted that theparties share custody on such a strictly equal basis that for several months the three children,ages two to eight, alternated daily between their parents' residences. A detailed alternativeworked out with a law guardian also failed. The parties were unable to coparent because theywere openly hostile to each other and, without drawn-out negotiations, could not reachagreement on any decisions with respect to their children, including important matters involvingeducation, extracurricular activities and medical care.
The court properly found that the interests of the young children will best be served byawarding sole custody to the mother because her style of parenting is more nurturing andconducive to the children's emotional and intellectual development, and because she was thechildren's primary caretaker before this litigation commenced. Although the court found that thefather is a loving, committed parent, it also found that his parenting skills had significantshortcomings. Among other things, the father demonstrated excessive anxiety about thechildren's physical well-being, and was inflexible in his response to the children's needs.[*2]
Contrary to the father's position, the testimony of theexpert was admissible since the expert opinion was primarily based upon direct knowledgederived from the expert's psychiatric interviews of the parties and their children, alone and incombination (see Balsz v A & T Bus Co., 252 AD2d 458 [1998]). To the extent that theexpert's report and testimony may have incorporated inadmissible hearsay, we find that theadmissible evidence in the record, including the portion of the expert's report that did not includehearsay, was sufficient to support the trial court's conclusion, and we would independently reachthe same result based on the unobjectionable portions of the record. Although the court shouldhave stricken the hearsay aspects of the expert's written report, admitting it did not constitutereversible error.
Finally, the court did not treat the law guardian as an unsworn witness by briefly referring toher opinion as to custody and her basis for it. Rather, the court appropriately took notice of theposition that the law guardian had taken as an advocate on the children's behalf (see Bluntt vO'Connor, 291 AD2d 106, 117 [2002], lv denied 98 NY2d 605 [2002]).
We have considered the father's additional arguments and find them without merit.Concur—Friedman, J.P., Sweeny, Catterson, Renwick and Freedman, JJ.