| Matter of Gorniok v Zeledon-Mussio |
| 2011 NY Slip Op 01659 [82 AD3d 767] |
| March 1, 2011 |
| Appellate Division, Second Department |
| In the Matter of Gregory Gorniok, Appellant, v JessicaZeledon-Mussio, Respondent. |
—[*1] Robert C. Mitchell, Riverhead, N.Y. (Amy E. King of counsel), Attorney for theChild.
In a child custody and visitation proceeding pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County(Snellenburg II, J.), dated January 13, 2010, as, after a hearing, (a) denied his petition to modify aprior custody order of the same court dated December 14, 2007, awarding the parties joint legalcustody of their child with physical custody to the mother and visitation every weekend to thefather, so as to award him sole custody of the child, (b) granted the mother's petitions to modifythe prior custody order so as to award her sole custody of the child and to reduce his visitationfrom every weekend and every Wednesday to alternate weekends and every Wednesday, and (c),in effect, dismissed his petition to adjudicate the mother in contempt for violating the order datedDecember 14, 2007.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"Since the Family Court's custody determination is largely dependent upon an assessment ofthe credibility of the witnesses and upon the character, temperament, and sincerity of the parents,its determination should not be disturbed unless it lacks a sound and substantial basis in therecord" (Matter of Tavarez v Musse,31 AD3d 458, 458 [2006] [internal quotation marks omitted]; see Matter of Battista v Fasano, 41AD3d 712, 713 [2007]; Matter of Johnson v Johnson, 309 AD2d 750, 751 [2003]).
"[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable,amicable parents behaving in mature civilized fashion" (Braiman v Braiman, 44 NY2d584, 589-590 [1978]; see Bliss v Ach, 56 NY2d 995, 998 [1982]; Matter of Edwards v Rothschild, 60AD3d 675, 676-677 [2009]). "However, joint custody is inappropriate 'where the parties areantagonistic towards each other and have demonstrated an inability to cooperate on mattersconcerning the child' " (Matter of Edwards v Rothschild, 60 AD3d at 677, quotingMatter of Timothy M. v Laura A.K., 204 AD2d 325, 326 [1994]; see Bliss v Ach,56 NY2d at 998; Matter of McCoy vMcCoy, 43 AD3d 469 [2007]; Matter of Tavarez v Musse, 31 AD3d at 458;Matter of Bornholdt v Alfieri, 201 AD2d 560 [1994]). Since the record here is "repletewith examples of hostility and antagonism between the parties, indicating that they were unableto put aside their differences for the good of the child" (Matter of Timothy M. v LauraA.K., 204 AD2d at 326; see Janecka v Franklin, 143 AD2d 731, 732 [1988]), there isa sound and substantial basis for the Family Court's determination that joint custody was nolonger appropriate (see Matter of Battista v Fasano, 41 AD3d at 713; Matter of Tavarez v Musse, 31 AD3d458 [2006]; Matter of Johnson v Johnson, 309 AD2d at 751).[*2]
Likewise, the record supports the determination that solelegal and physical custody should be with the mother, not the father. The mother had primaryphysical custody of the child since the child's birth, and by the parties' agreement. The parties'own agreement as to who should have custody constitutes a weighty factor to which priorityshould be accorded absent extraordinary circumstances (see Eschbach v Eschbach, 56NY2d 167, 171 [1982]; Matter of Neu v Neu, 303 AD2d 509, 510 [2003]; Alanna M.v Duncan M., 204 AD2d 409 [1994]). Since the record supports the Family Court'sdetermination to disregard the testimony of the babysitter on the ground that she lackedcredibility, the father has failed to show circumstances warranting a disruption of "the stabilityand continuity of the present situation" (Matter of Bryant v Nazario, 306 AD2d 529[2003]; see Matter of Chase vMatanda-Chase, 41 AD3d 475, 476 [2007]; Matter of Rodriguez v Irizarry, 29 AD3d 704 [2006]) as to physicalcustody.
The record also supports the Family Court's determination to reduce the father's visitationfrom every weekend and every Wednesday to alternate weekends and every Wednesday to allowthe child to spend recreation time with her mother and brother and to participate in events withthe mother's family.
The father is correct that the Family Court improvidently exercised its discretion inpermitting the introduction of extrinsic evidence to contradict the babysitter's testimonyregarding matters that "had no direct bearing on any issue in the case other than credibility"(Badr v Hogan, 75 NY2d 629, 635 [1990]; see People v Pavao, 59 NY2d 282,289 [1983]; People v Griffin, 194 AD2d 738, 739 [1993]). However, the error washarmless, as "[t]here is a sound and substantial basis in the record for the Family Court'sdetermination without consideration of the improperly admitted [evidence]" (Matter of Tercjak v Tercjak, 49 AD3d772, 773 [2008]; see Matter ofMingo v Belgrave, 69 AD3d 859, 860 [2010]; Matter of Taylor v Taylor, 62 AD3d 1015, 1016 [2009]). Covello,J.P., Chambers, Lott and Cohen, JJ., concur.