Opinion
March 14, 1983
In a custody proceeding between the natural parents of a five-year-old child born out of wedlock, the mother appeals from an order of the Family Court, Rockland County (Stanger, J.), dated July 1, 1982, which awarded custody of the parties' infant child to the petitioner husband. Order reversed, on the law and the facts, without costs or disbursements, custody of the infant child is awarded to the mother, and the matter is remitted to the Family Court, Rockland County, for the purpose of entering an order fixing appropriate visitation for the father. The Family Court held that the mother denied visitation rights to the father whenever possible during the pendency of the proceeding and specifically found that "the respondent [mother] is a less fit parent than the petitioner [father] to have custody of the child". Although it is apparent from the record that the mother willfully impeded the father's visitation rights and, indeed, attempted to influence the child against him, the test on a proceeding to change custody is the best interests of the child (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89). The mother, for all of the mentioned deficiencies, is a loving parent who is able to devote much time to the child and whose own mother, a resident in the household, takes care of the child in the mother's absence. The father, while also loving, spoke in terms of hiring a nun to take care of the child. On balance, we conclude that at this time the child's best interests continue to be in the custody of the mother. If, of course, her obstreperous conduct and efforts to influence the child against the father continue, the matter may be brought up for further consideration. Considering the factors we have mentioned and the record generally, we are disinclined to award the mother further counsel fees. Damiani, J.P., Lazer, Gulotta and Bracken, JJ., concur.