| Matter of Yasus v Yasus |
| 2010 NY Slip Op 00269 [69 AD3d 738] |
| January 12, 2010 |
| Appellate Division, Second Department |
| In the Matter of James R. Yasus,Appellant-Respondent, v Dana E. Yasus, Respondent-Appellant. Adrienne FlipseHausch, Nonparty Appellant-Respondent. (Proceeding No. 1.) In the Matter of Dana E. Yasus,Respondent-Appellant, v James R. Yasus, Appellant-Respondent. Adrienne Flipse Hausch,Nonparty Appellant-Respondent. (Proceeding No. 2.) |
—[*1] Adrienne Flipse Hausch, Mineola, N.Y., attorney for the children, nonpartyappellant-respondent pro se. Elaine Jackson Stack, Garden City, N.Y., for respondent-appellant.
In related child custody proceedings pursuant to Family Court Act article 6, the attorney forthe children appeals, as limited by her brief, from so much of an order of the Family County,Nassau County (Singer, J.), dated June 23, 2008, as, after a hearing, denied the father's petitionfor sole custody of the children, directed that the parties would continue to have joint custody ofthe children unless the mother returned to New York, in which case the mother was awarded solecustody of the children, and awarded the mother certain decision-making authority, and thefather separately appeals, as limited by his brief, from so much of the same order as denied hispetition for sole custody of the children and awarded the mother certain decision-makingauthority; and the mother cross-appeals, as limited by her brief, from so much of the same orderas denied petition for permission to relocate with the children.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The parties are the parents of two young children. When they divorced, they agreed to sharejoint custody, with the mother to have physical custody. After the mother relocated to SouthCarolina with the children without the permission of either the father or the Family Court,physical custody was transferred to the father, and he then moved with the children to live withhis mother in an apartment in Nassau County. Both parties then petitioned the Family Court forsole custody of the children, with the mother also seeking for permission to relocate them to livewith her and her new husband in South Carolina.[*2]
After a trial conducted over the span of a year, theFamily Court determined that the mother would be awarded sole custody of the children,provided that she returned to live in New York, within 30 miles of the father's home, by January1, 2009. If she chose not to return to New York, the parties were to share joint custody, with thefather to retain physical custody of the children, and the mother to have final decision-makingauthority concerning the children's welfare, education, medical, and mental health issues, exceptin the event of an emergency. The mother did not relocate to New York.
Custody determinations depend largely upon the court's assessment of the credibility ofwitnesses, as well as the parties' character, temperament, and sincerity (see Matter of Brass v Otero, 40 AD3d752, 752 [2007]). Therefore, "[w]here the court has conducted a complete evidentiaryhearing, its findings must be accorded great weight, and its custody . . .determination will not be disturbed unless it lacks a sound and substantial basis in the record"(id. at 752; see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Whitley v Whitley, 33 AD3d810 [2006]; Matter of Waldron vDussek, 48 AD3d 471 [2008]).
The Family Court's determination in this case, while not resulting in an ideal situation,nevertheless has a sound and substantial basis in the record, and was clearly fashioned topromote the best interests of the children involved. The record supports the Family Court'sfinding that the mother is more capable of making appropriate decisions concerning thechildren's education and mental and physical health needs, and is a more active advocate for thechildren, such that it was in their best interest to award sole custody to her (see Matter ofLouise E.S. v W. Stephen S., 64 NY2d 946 [1985]).
However, based on the finding that the mother did not establish by a preponderance of theevidence that it was in the best interest of the children to relocate to South Carolina, a findingwith which we agree (see Matter of Tropea v Tropea, 87 NY2d 727 [1996]), it wasappropriate to condition the award of sole custody to her upon her relocating to New York.Inasmuch as she elected not to relocate to New York, the parties are sharing joint custody of thechildren, the father has physical custody, and the mother has final decision-making authorityconcerning the children's welfare, education, medical, and mental health issues, except in anemergency. Since there is a sound and substantial basis in the record for finding that thisarrangement, although inconvenient for the adults involved, is in the best interests of thechildren, we decline to disturb it. Skelos, J.P., Dickerson, Lott and Roman, JJ., concur.