| Kramer v Griffith |
| 2014 NY Slip Op 05161 [119 AD3d 655] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Rebecca L. Kramer, Respondent, v RobertG.T. Griffith, Appellant. |
Cohen Rabin Stine Schumann LLP, New York, N.Y. (Tim James of counsel), forappellant.
Rebecca Kramer, named herein as Rebecca L. Kramer, White Plains, N.Y.,respondent pro se.
In an action for a divorce and ancillary relief, the defendant appeals from statedportions of a judgment of the Supreme Court, Westchester County (Colangelo, J.), datedNovember 8, 2012, which, after a nonjury trial (Martin, J.), inter alia, awarded sole legaland physical custody of the parties' child to the plaintiff with certain visitation to thedefendant conditioned upon his continued participation in therapy.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
In making an initial custody determination, the court must consider whatarrangement is in the best interests of the child under the totality of the circumstances(see Eschbach v Eschbach, 56 NY2d 167, 171-173 [1982]; see also Scholar v Timinisky,87 AD3d 577, 578 [2011]). A custody determination depends greatly "upon anassessment of the character and credibility of parties and witnesses" (Matter of Langlaise v Sookhan,48 AD3d 685, 685 [2008]). Because the hearing court is able to observe witnessesand evaluate evidence firsthand, its determination "is generally accorded great deferenceon appeal and should not be disturbed unless it lacks a sound and substantial basis in therecord" (Matter of Perez vMartinez, 52 AD3d 518, 519 [2008]).
Here, there is a sound and substantial basis for the Supreme Court's determinationthat it is in the best interests of the parties' child that sole legal and physical custody beawarded to the mother. This includes, inter alia, the unrefuted evidence that the mother'sliving situation and employment are considerably more stable than the father's livingsituation and employment (seeMatter of Mitchell v Mitchell, 113 AD3d 775 [2014]), and the high level ofantagonism between the parties that makes it impossible for them to cooperate with eachother (see Braiman v Braiman, 44 NY2d 584 [1978]; Matter of Edwards vRothschild, 60 AD3d 675 [2009]).
Contrary to the father's contention, the Supreme Court providently exercised itsdiscretion in awarding him overnight visits with the child for one night, every otherweekend, plus midweek visits. "The paramount concern in any custody or visitationdetermination is the best interests of the child, under the totality of the circumstances"(Matter of Boggio vBoggio, 96 AD3d 834, 835 [2012]; see Eschbach v Eschbach, 56 NY2dat 171; Friederwitzer v Friederwitzer, 55 NY2d 89, [*2]94 [1982]; Galanti v Kraus, 85 AD3d 723, 724 [2011]; Matter of Alexander vAlexander, 62 AD3d 866, 866-867 [2009]). Here, at the time that the courtmade its determination as to visitation, the child was four years old and had neverexperienced unsupervised visitation with the father. At trial, the court-appointed forensicevaluator testified, inter alia, that the father suffered from a psychiatric disorder and wasunable to place the needs of the child before his own needs. Consequently, it was in thechild's best interests to initially have limited unsupervised visitation with the father (see Matter of Maio vDeCrescenzo, 100 AD3d 999, 999-1000 [2012]). Moreover, it was not animprovident exercise of discretion to condition overnight visitation upon the father'scontinued participation in therapy (see Matter of Minus v Lannaman, 81 AD3d 830, 831[2011]; Zafran v Zafran, 28AD3d 753 [2006]; Matter of Irwin v Schmidt, 236 AD2d 401 [1997];Landau v Landau, 214 AD2d 541 [1995]).
Contrary to the father's contentions, his decision to proceed pro se for a portion ofthe trial was knowing and voluntary.
The father's remaining contentions are without merit. Dillon, J.P., Lott, Austin andBarros, JJ., concur.