| Baker v Baker |
| 2009 NY Slip Op 07366 [66 AD3d 722] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Erik L. Baker, Appellant, v Patricia P. Baker,Respondent. |
—[*1] Jeffrey P. Sharkey, Richmond Hill, N.Y., for respondent. John W. Casey, Long Island City, N.Y., attorney for the child.
In an action for a divorce and ancillary relief, the plaintiff father appeals, as limited by hisbrief, from stated portions of an order of the Supreme Court, Queens County (Strauss, J.), datedJanuary 22, 2009, which, after a hearing, inter alia, denied his motion, among other things, tomodify the parties' stipulation by awarding him sole custody of the parties' child and, in effect,modified the parties' stipulation by awarding the defendant mother ultimate decision-makingauthority with respect to the child's medical and dental issues.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parties entered into a stipulation whereby the defendant mother was awarded primaryphysical custody of the parties' child. The stipulation required the parties to consult with eachother regarding the child's issues, but in the event no agreement could be reached, the defendantmother was given ultimate decision-making authority with respect to the child's educationalissues, and the plaintiff father was given ultimate decision-making authority with respect to thechild's medical, dental, and religious issues.
Where, as here, parents enter into an agreement concerning custody, that agreement will notbe modified unless there is a sufficient change in circumstances since the time of the stipulation,and unless modification of the custody arrangement is in the best interests of the child (see Matter of Said v Said, 61 AD3d879, 880 [2009]; Matter ofManfredo v Manfredo, 53 AD3d 498, 499 [2008]; Matter of Rawlins v Barth, 21 AD3d 495 [2005]).
Here, we decline to disturb the Supreme Court's determination, which denied the plaintifffather's motion for sole custody of the child and, in effect, modified the parties' stipulation byawarding the defendant mother ultimate decision-making authority with respect to the child'smedical and dental issues, as it is supported by a sound and substantial basis in the record (see Wideman v Wideman, 38 AD3d1318 [2007]; Matter of Ring vRing, 15 AD3d 406 [2005]).[*2]
The recommendations of court-appointed experts, andthe position of the attorney for the child, are factors to be considered and are entitled to someweight, but such recommendations and position are not determinative and do not usurp thejudgment of the trial judge (see Matterof Nikolic v Ingrassia, 47 AD3d 819, 821 [2008]; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917 [2007];Miller v Pipia, 297 AD2d 362, 365 [2002]). Consequently, the Supreme Court was notobligated to adopt the recommendation of the court-appointed forensic evaluator and the positionof the attorney for the child, and adequately explained its reasons for disregarding thoserecommendations and that position (see Vinciguerra v Vinciguerra, 294 AD2d 565, 566[2002]).
The plaintiff father's remaining contentions are without merit. Skelos, J.P., Santucci, Belenand Hall, JJ., concur.