| Prohaszka v Prohaszka |
| 2013 NY Slip Op 00727 [103 AD3d 617] |
| February 6, 2013 |
| Appellate Division, Second Department |
| Sherri Prohaszka, Respondent, v German G.Prohaszka, Appellant. |
—[*1] Carl F. Lodes, Carmel, N.Y., for respondent. Lois M. Dieter, Somers, N.Y., attorney for the children.
In an action for a divorce and ancillary relief, the defendant appeals, by permission,from stated portions of an amended order of the Supreme Court, Putnam County(Nicolai, J.), dated January 31, 2012, which, inter alia, upon a decision of the same courtdated November 23, 2011, made after a nonjury trial, awarded the parties joint legalcustody of the parties' children, with the plaintiff having primary physical custody andfinal decision-making authority.
Ordered that the amended order is modified, on the law, on the facts, and in theexercise of discretion, by adding a provision thereto directing the plaintiff to consult withthe defendant regarding any issues involving the children's health, medical care,education, religion, and general welfare prior to exercising her final decision-makingauthority for the children; as so modified, the amended order is affirmed insofar asappealed from, with costs to the plaintiff.
The essential consideration in making an award of custody is the best interests of thechild (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Since a custodydetermination necessarily depends to a great extent upon an assessment of the characterand credibility of the parties and witnesses, deference is accorded the court's findings (see Matter of Elliott v Felder,69 AD3d 623, 623 [2010]; Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]).Therefore, its findings should not be set aside unless they lack a sound and substantialbasis in the record (see Matterof Sajid v Berrios-Sajid, 73 AD3d 1186, 1187 [2010]; Matter of Nikolic v Ingrassia,47 AD3d 819, 820 [2008]).
Here, although it is evident that there is antagonism between the parties, it also isapparent that both parties generally behave appropriately with their children, that theycan make parenting decisions together, and that the children are attached to both parents.Under these circumstances, there is a sound and substantial basis in the record for theSupreme Court's finding that the best interests of the children would be served byawarding the parties joint custody (see Matter of Dwyer-Hayde v Forcier, 67 AD3d 1011,1011 [2009]; Matter of Marriottv Hernandez, 55 AD3d 613, 614 [2008]). Similarly, the record supports thedetermination that primary physical custody should be with the mother and that sheshould have final decision-making authority (see Matter of Griffin v [*2]Scott, 303 AD2d 504 [2003]). The court, however,should have directed the plaintiff to consult with the defendant regarding any issuesinvolving the children's health, medical care, education, religion, and general welfareprior to exercising her final decision-making authority (see Matter of Vialardi vVialardi, 67 AD3d 921, 921 [2009]).
The defendant's remaining contentions are without merit. Skelos, J.P., Dickerson,Chambers and Hinds-Radix, JJ., concur.