| Matter of Schweizer v Jablesnik |
| 2012 NY Slip Op 04181 [95 AD3d 1341] |
| May 30, 2012 |
| Appellate Division, Second Department |
| In the Matter of Florence Schweizer, Appellant, v DavidChristian Jablesnik, Respondent. |
—[*1] Richard L. Herzfeld, New York, N.Y., for respondent. Andrew W. Szczesniak, White Plains, N.Y., attorney for the child.
In a custody proceeding pursuant to Family Court Act article 6, the mother appeals from anorder of the Family Court, Orange County (Bivona, J.), dated June 13, 2011, which denied heramended petition to modify an order of the same court dated February 6, 2007, awarding jointcustody of the subject child with sole physical custody to the father, so as to award her solecustody of the child, and awarded sole custody of the child to the father, with visitation to her.
Ordered that the order dated June 13, 2011, is affirmed, without costs or disbursements.
The essential consideration in making an award of custody is the best interests of the child(see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). "Since custody determinationsturn in large part on assessments of the credibility, character, temperament and sincerity of theparties, the Family Court's determination should not be disturbed unless it lacks a sound andsubstantial basis in the record" (Matterof Chery v Richardson, 88 AD3d 788, 788 [2011]). A change of custody should be madeonly if the totality of the circumstances warrants a modification (see Friederwitzer vFriederwitzer, 55 NY2d 89, 95-96 [1982]).
Joint custody is encouraged "as a voluntary alternative for relatively stable, amicable parentsbehaving in mature civilized fashion" (Braiman v Braiman, 44 NY2d 584, 589-590[1978]). A change from joint legal custody to sole custody by one parent is warranted where "theparties' relationship is so acrimonious that it effectively precludes joint decision-making" (Matter of Picado v Doan, 90 AD3d932, 933 [2011]). Here, the Family Court properly concluded that the parents' relationshipwas too acrimonious to allow for joint decision-making (see Matter of Edwards v Rothschild, 60 AD3d 675, 677 [2009]),and properly determined that it was in the child's best interests to award sole legal and physicalcustody to the father, with the mother retaining significant visitation (see Matter of Pavone v Bronson, 88AD3d 724, 725 [2011]; Freihofnerv Freihofner, 33 AD3d 585, 586 [2006]). Accordingly, the court properly awarded solecustody to the father and denied the mother's amended petition to modify the prior orderawarding joint custody of the subject child with sole physical custody to the father, so as toaward her sole custody of the child.[*2]
The mother's remaining contentions are without merit.Angiolillo, J.P., Eng, Lott and Cohen, JJ., concur.