| Matter of Solovay v Solovay |
| 2012 NY Slip Op 02698 [94 AD3d 898] |
| April 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Steven L. Solovay, Appellant, v SandraSolovay, Respondent. (Proceeding No. 1.) In the Matter of Sandra Solovay, Respondent, vSteven L. Solovay, Appellant. (Proceeding No. 2.) |
—[*1] Thomas K. Campagna, Hauppauge, N.Y., for respondent. Frederic P. Schneider, New York, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, thefather appeals from (1) an order of the Family Court, Suffolk County (Orlando, R.), datedFebruary 7, 2011, made after a hearing, and (2) an amended order of the same court dated March22, 2011, which, inter alia, granted the mother's cross petition to modify the custody andvisitation provisions set forth in a stipulation of settlement dated March 12, 2008, which wasincorporated but not merged into the parties' judgment of divorce dated January 22, 2009, so asto award her sole custody of the subject child with certain visitation to the father.
Ordered that the appeal from the order dated February 7, 2011, is dismissed, as it wassuperseded by the amended order dated March 22, 2011; and it is further,
Ordered that the amended order dated March 22, 2011, is modified, on the facts and in theexercise of discretion, by deleting the provision thereof directing that the father have visitationwith the subject child every other weekend from Friday at 6:00 p.m. to Sunday at 5:00 p.m. andon the alternate Tuesday between 6:00 p.m. and 8:00 p.m., and substituting therefor a provisiondirecting that the father have visitation every other weekend from Friday at 3:00 p.m. to Sundayat 5:00 p.m. and on the alternate Tuesday from 3:00 p.m. to Wednesday at 6:00 p.m.; as somodified, the amended order is affirmed, without costs or disbursements.
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that modification is necessary to ensure the bestinterests of the child. The court must consider the totality of the circumstances. In this regard, thecourt should consider whether the alleged changed circumstances indicate one of the parties isunfit, [*2]the nature and quality of the relationships between thechild and the parties, and the existence of a prior agreement. Since custody determinations turn inlarge part on assessments of the credibility, character, temperament and sincerity of the parties,the Family Court's determination should not be disturbed unless it lacks a sound and substantialbasis in the record" (Matter of Chery vRichardson, 88 AD3d 788 [2011] [citations and internal quotation marks omitted];see Eschbach v Eschbach, 56 NY2d 167 [1982]).
Although "priority . . . is accorded the first award" (Friederwitzer vFriederwitzer, 55 NY2d 89, 94 [1982]), it is nevertheless "but one factor to be weighed bythe court in deciding whether a change of custody [or visitation rights] is warranted"(Eschbach v Eschbach, 56 NY2d at 171; see Friederwitzer v Friederwitzer, 55NY2d at 93-94). Further, where, as here, the initial custody award is the result of a stipulation, itis entitled to less weight than a disposition after a plenary trial (see Friederwitzer vFriederwitzer, 55 NY2d at 94-95; Matter of Martinez v Hyatt, 86 AD3d 571 [2011]).
"[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]). "However, joint custody is inappropriate where the parties are antagonistictowards each other and have demonstrated an inability to cooperate on matters concerning thechild" (Matter of Edwards vRothschild, 60 AD3d 675, 677 [2009] [internal quotation marks omitted]; see Matter of Conway v Conway, 89AD3d 936, 937 [1982]; Matter ofGorniok v Zeledon-Mussio, 82 AD3d 767, 768 [2011]).
Here, a sound and substantial basis exists in the record for the Family Court's determinationthat the relationship between the parties has become so antagonistic that they are unable tocooperate on decisions regarding the subject child, and that it is in the best interests of the childfor the mother to have sole custody (seeMatter of Conway v Conway, 89 AD3d 936 [2011]; Matter of Nell v Nell, 87 AD3d 541 [2011]).
However, the Family Court improvidently exercised its discretion in determining the amountof visitation for the father, which did not include an award of weekday overnight visitation(see Matter of Nell v Nell, 87 AD3d at 542). On this record, the best interests of the childwould be served by awarding the father visitation with the child every other weekend fromFriday at 3:00 p.m. to Sunday at 5:00 p.m. and on the alternate Tuesday from 3:00 p.m. toWednesday at 6:00 p.m.
There is no merit to the contention of the attorney for the child that the Family Court erred innot ordering a forensic evaluation prior to reaching its determination. The record does notindicate that such an evaluation was necessary to enable the Family Court to reach itsdetermination (see Matter of Jennings vSmall, 59 AD3d 546 [2009]; Matter of Hernandez v Rodriguez, 42 AD3d 498 [2007]; Matter of Akyuz v Akyuz, 30 AD3d511 [2006]). Contrary to the contention of the attorney for the child, there is no evidence thatthe referee was biased against the father or deprived him of a fair hearing (see Matter of Zeman v Knibbs, 86AD3d 578 [2011]; Matter of TajaK., 51 AD3d 1027 [2008]). Dillon, J.P., Lott, Roman and Cohen, JJ., concur.