| Matter of Saravia v Godzieba |
| 2014 NY Slip Op 05989 [120 AD3d 821] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Joseph Saravia,Appellant, v Teresa Godzieba, Respondent. |
Law Offices of Clifford J. Petroske, P.C., Bohemia, N.Y., for appellant.
Thomas W. McNally, Huntington, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Actarticle 6, the father appeals from an order of the Family Court, Suffolk County (Orlando,Ct. Atty. Ref.), dated July 10, 2013, which granted the mother's cross petition for solecustody of the subject child and awarded him only certain visitation, and, in effect,denied his petition for sole custody of the subject child.
Ordered that the order is modified, on the facts and in the exercise of discretion, byadding a provision thereto directing that when one parent is working, that parent, prior tomaking babysitting arrangements with a nonparent, shall first afford the other parent theopportunity to care for the subject child during such work period; as so modified, theorder is affirmed, without costs or disbursements.
The mother and the father, who were never married, are the parents of a son who isalmost three years of age, having been born in September 2011. After the birth of thesubject child, the parties resided together for approximately six months until the mother,with the child, moved out. In June 2012, the father filed a petition for sole legal andphysical custody of the child, and the mother cross-petitioned for sole legal and physicalcustody of the child. After a hearing at which the parties and one other witness testified,the Family Court awarded the mother sole legal and physical custody of the child, withvisitation to the father. The father appeals.
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 [1982]; Kramer v Griffith, 119 AD3d655 [2014]). "Where, as here, the court has conducted a complete evidentiaryhearing on the issues of custody and visitation, its findings must be accorded greatweight, and its custody and visitation determination will not be disturbed unless it lacks asound and substantial basis in the record" (Iacono v Iacono, 117 AD3d 988, 988 [2014]). Here, thereis a sound and substantial basis in the record to support the Family Court's determinationthat it was in the best interests of the child to award sole custody to the mother, withvisitation to the father (seeMatter of Chichilnitskiy v Faiman, 119 AD3d 681 [2014]; Iacono vIacono, 117 AD3d at 988-989; Matter of Ramirez v Velez, 78 AD3d 1062 [2010]). Theevidence at the hearing established that both parents love the child, are gainfullyemployed, maintain their own homes, and can adequately provide for the child's overalldevelopment. However, the Family Court, having the benefit of observing and [*2]listening to the witnesses, including the testimony of bothparties, found that the mother was better suited to place the child's interests ahead of herown and to foster the child's relationship with the other parent. Accordingly, the FamilyCourt's determination awarding custody to the mother will not be disturbed (see Matter of Felty v Felty, 108AD3d 705 [2013]). In addition, the visitation schedule set by the Family Courtprovides the father with reasonable visitation privileges (see Matter of Grunwald vGrunwald, 108 AD3d 537, 539 [2013]). Nonetheless, we find that under thecircumstances of this case, where both parties have different work schedules and haveexpressed a desire to care for the child during the periods when the other parent isworking, it would be in the best interests of the child for each parent, prior to arrangingfor a nonparent to babysit the child during a work period, to first afford the other parentthe opportunity to care for the child during that time.
Contrary to the father's contention on appeal, an award of joint custody or equalparenting time would not have been in the child's best interests, as the parties weresometimes antagonistic toward each other and demonstrated an inability to cooperate oncertain important matters concerning the child (see Braiman v Braiman, 44 NY2d584, 590 [1978]; Matter ofLawrence v Davidson, 109 AD3d 826 [2013]).
The father's remaining contentions are without merit. Skelos, J.P., Dillon, Malteseand Barros, JJ., concur.