| Matter of Dwyer-Hayde v Forcier |
| 2009 NY Slip Op 08820 [67 AD3d 1011] |
| November 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Suzanne Dwyer-Hayde,Respondent, v Roger Forcier, Appellant. |
—[*1] Carol Kahn, New York, N.Y., for respondent. Carrieri & Carrieri, P.C., Mineola, N.Y. (Ralph R. Carrieri of counsel), attorney for thechildren.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Dutchess County (Forman,J.), dated June 11, 2008, as, after a hearing, awarded the parties joint custody of the two subjectchildren, with physical custody to the mother and liberal visitation to him.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The essential consideration in any custody controversy is the best interests of the child(see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). In determining the best interestsof the child, the court must evaluate the "totality of [the] circumstances" (Friederwitzer vFriederwitzer, 55 NY2d 89, 95-96 [1982]). "Custody determinations depend to a very greatextent upon the hearing court's assessment of the credibility of the witnesses and of the character,temperament, and sincerity of the parties. Thus, where a hearing court has conducted a completeevidentiary hearing, its finding must be accorded great weight, and its grant of custody will notbe disturbed unless it lacks a sound and substantial basis in the record" (Nicholas T. v Christine T., 42 AD3d526, 527 [2007] [citations and internal quotation marks omitted]; see Matter of Irene O.,38 NY2d 776, 777 [1975]).
Here, while it is clear that there is antagonism between the parties, it also is apparent thatboth parties generally behave appropriately with the children, that they cooperate in mattersconcerning the children, and that the children are attached to both parents. Under thesecircumstances, there is a sound and substantial basis in the record for the Family Court's findingthat the best interests of the children would be served by awarding the parties joint custody (see Matter of Marriott v Hernandez, 55AD3d 613, 614 [2008]; cf. Braiman v Braiman, 44 NY2d 584, 589-590 [1978]; Matter of Edwards v Rothschild, 60AD3d 675, 676-677 [2009]).[*2]
Furthermore, the Family Court's determination that themother should retain physical custody of the children is amply supported by the record.Although there was evidence that the father was a loving parent, the Family Court properlyconcluded that it was in the children's best interests to reside with their mother, who had beentheir primary caretaker for most of their lives and was better able to provide for their emotionaland intellectual development (seeMatter of Ocampo v Jimenez, 27 AD3d 753 [2006]; Matter of Olson v Olson, 8 AD3d 285, 286 [2004]; see also Matter of Larkin v White, 64AD3d 707 [2009]). Moreover, the liberal visitation schedule gives the father a meaningfulopportunity to maintain a close relationship with the children (see Matter of Olson v Olson,8 AD3d at 286). Dillon, J.P., Florio, Balkin and Leventhal, JJ., concur.