| Sitts v Sitts |
| 2010 NY Slip Op 05046 [74 AD3d 1722] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Joseph B. Sitts, Respondent, v Allison L. Sitts,Appellant. |
—[*1] Peter M. Hobaica LLC, Utica (George E. Curtis of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Oneida County (Anthony F. Shaheen, J.),entered July 16, 2009 in a divorce action. The order, among other things, awarded primaryphysical custody of the parties' children to plaintiff.
It is hereby ordered that the order so appealed from is unanimously modified on the law byawarding primary physical custody of the children to defendant and by vacating the secondthrough sixth ordering paragraphs and as modified the order is affirmed without costs, and thematter is remitted to Supreme Court, Oneida County, for further proceedings in accordance withthe following memorandum: Plaintiff commenced this action seeking, inter alia, a divorce andprimary physical custody of the parties' children. After a bifurcated trial on the issues of custodyand visitation, Supreme Court awarded the parties joint legal custody of the children, withprimary physical custody of the children to plaintiff. The best interests of the children must bethe primary consideration in determining the issue of custody (see Eschbach v Eschbach,56 NY2d 167, 171 [1982]), and we agree with defendant that the award of primary physicalcustody to plaintiff is not in the best interests of the parties' children.
It is well settled that "[t]he authority of the Appellate Division in matters of custody is asbroad as that" of the trial court (Matter of Louise E.S. v W. Stephen S., 64 NY2d 946,947 [1985]). Although, as a general rule, the custody determination of the trial court is entitled togreat deference (see Eschbach, 56 NY2d at 173-174), "[s]uch deference is not warranted. . . where the custody determination lacks a sound and substantial basis in therecord" (Fox v Fox, 177 AD2d 209, 211-212 [1992]), and that is the case here. Therecord establishes that defendant was the children's primary caregiver throughout the marriage.In addition to maintaining a full-time job, defendant prepared the family's meals, bathed thechildren, made the necessary arrangements for day care, administered the children's medications,read to the children, and put them to bed. By contrast, plaintiff's involvement with the childrenlargely consisted of attending a few medical appointments and school conferences. The recordalso reflects that plaintiff spent a significant amount of time pursuing his own recreationalinterests, leaving the children in defendant's care. Moreover, at the time of the custodydetermination, plaintiff had not yet obtained a permanent residence for the children.[*2]
In rendering its decision with respect to physical custodyof the children, the court focused on various matters that were irrelevant to a determination ofthe children's best interests in this case, including defendant's alleged marital infidelity. "Aparent's infidelity or sexual indiscretions should be a consideration in a custody dispute only if itcan be shown that such factor may adversely affect the child[ren]'s welfare" (Pawelski vBuchholtz, 91 AD2d 1200, 1200 [1983]; see Matter of Blank v Blank, 124 AD2d1010 [1986]), and no such showing was made here. The court also improperly based itsdetermination on defendant's relocation to Ithaca, which is approximately 65 miles from theformer marital residence. The record reflects that defendant moved to Ithaca to obtain a new jobonly after plaintiff sent a letter to defendant's former supervisor criticizing defendant's workperformance and alleging that defendant engaged in job-related misconduct. We note in anyevent that defendant's relocation is not a proper basis upon which to award primary physicalcustody to plaintiff under the circumstances of this case inasmuch as the children will need totravel between the parties' two residences regardless of which parent is awarded primaryphysical custody.
We therefore modify the order by awarding primary physical custody of the children todefendant and by vacating those ordering paragraphs providing for visitation, and we remit thematter to Supreme Court to set an appropriate visitation schedule. Present—Scudder, P.J.,Smith, Peradotto, Lindley and Sconiers, JJ.