Opinion
2016–10322 Docket Nos. V–2087–09/15F/15G
12-20-2017
In the Matter of Steven STEINGART, appellant, v. Lisa FONG, respondent.
Neal D. Futerfas, White Plains, NY, for appellant. Annette G. Hasapidis, South Salem, NY, for respondent. Jessica Bacal, Mount Kisco, NY, attorney for the child.
Neal D. Futerfas, White Plains, NY, for appellant.
Annette G. Hasapidis, South Salem, NY, for respondent.
Jessica Bacal, Mount Kisco, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
Appeal from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated August 4, 2016. The order, insofar as appealed from, after a hearing, denied the father's motion to modify a prior order of custody and visitation of that court entered June 26, 2015, upon the parties' consent, to award him sole legal and physical custody of the parties' child, awarded the parties shared physical custody of the child pursuant to a detailed parenting schedule, awarded the mother final authority with respect to the child's medical and religious decisions, directed the parties to refer any dispute regarding parenting time or the provisions of the order to the Parenting Solutions program, and denied the father's request for an award of an attorney's fee.
ORDERED that the order dated August 4, 2016, is affirmed insofar as appealed from, without costs or disbursements.
The parties, who never married, are the parents of a daughter born in 2006. The mother and the daughter moved out of the father's home in 2009. In an order of custody and visitation entered June 26, 2015, upon the parties' consent, the Family Court, in effect, awarded the mother sole residential custody of their daughter. The father subsequently moved to obtain sole legal and physical custody of the daughter. The court held a hearing and, after determining that there was a change in circumstances, inter alia, awarded the parties joint legal and physical custody of the daughter and set up detailed parenting schedules for the school year as well as the summer. The father appeals.
The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (see Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Gooler v. Gooler , 107 A.D.3d 712, 966 N.Y.S.2d 208 ; Matter of Julie v. Wills , 73 A.D.3d 777, 777, 899 N.Y.S.2d 669 ). " ‘Since any custody determination depends to a very great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record, or are contrary to the weight of the evidence’ " ( Matter of Diaz v. Diaz , 97 A.D.3d 747, 747, 948 N.Y.S.2d 413, quoting Matter of Chabotte v. Faella , 77 A.D.3d 749, 749–750, 908 N.Y.S.2d 607 ; see Trinagel v. Boyar , 70 A.D.3d 816, 893 N.Y.S.2d 636 ).
Contrary to the father's contention, the Family Court properly denied that branch of his motion which was to be awarded sole physical custody of the daughter. The court's determination that the daughter would benefit from equal amounts of time with each parent, and that it would be in her best interests for physical custody to be shared by the parents, has a sound and substantial basis in the record and will not be disturbed (see Matter of Hardy v. Figueroa , 128 A.D.3d 824, 825, 9 N.Y.S.3d 140 ; Matter of Delgado v. Frias , 92 A.D.3d 1245, 937 N.Y.S.2d 814 ; Matter of Conway v. Conway , 89 A.D.3d 936, 936–937, 933 N.Y.S.2d 75 ). Notably, although the court determined that there was an antagonistic relationship between the parties (see generally Bliss v. Ach , 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349 ; Braiman v. Braiman , 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ), such a determination, without more, does not mean that an award of shared physical custody is inappropriate (see Matter of Hardy v. Figueroa , 128 A.D.3d at 825, 9 N.Y.S.3d 140 ; Matter of Delgado v. Frias , 92 A.D.3d at 1245, 937 N.Y.S.2d 814 ; Wideman v. Wideman , 38 A.D.3d 1318, 1319, 834 N.Y.S.2d 405 ).
Moreover, the Family Court was not required to follow the recommendations of the forensic expert (see Matter of E.D. v. D.T. , 152 A.D.3d 583, 584, 58 N.Y.S.3d 527 ; Matter of Nelson v. Nelson , 276 A.D.2d 634, 634, 714 N.Y.S.2d 909 ; Matter of Prete v. Prete , 193 A.D.2d 804, 805, 598 N.Y.S.2d 79 ) and, contrary to the father's contention, the court's stated reasons for disregarding the expert's recommendation had a sound and substantial basis in the record (compare Zafran v. Zafran , 306 A.D.2d 468, 469–470, 761 N.Y.S.2d 317, and Vinciguerra v. Vinciguerra , 294 A.D.2d 565, 566, 743 N.Y.S.2d 139, with Matter of Wilson v. Bryant , 143 A.D.3d 905, 907, 41 N.Y.S.3d 503 ).
When an antagonistic relationship exists between the parties, it may be appropriate, depending upon the particular circumstances of the case, to give each party decision-making authority in separate areas (see Matter of Hardy v. Figueroa , 128 A.D.3d at 826, 9 N.Y.S.3d 140 ; Jacobs v. Young , 107 A.D.3d 896, 897, 969 N.Y.S.2d 70 ; Chamberlain v. Chamberlain , 24 A.D.3d 589, 591, 808 N.Y.S.2d 352 ; Matter of Ring v. Ring , 15 A.D.3d 406, 790 N.Y.S.2d 51 ). "The division of authority is usually made either somewhat evenly, in order to maintain the respective roles of each parent in the child's life or, although unevenly, in a manner intended to take advantage of the strengths [or] demonstrated ability" of each parent ( Chamberlain v. Chamberlain , 24 A.D.3d at 592, 808 N.Y.S.2d 352 [citations omitted]; see Jacobs v. Young , 107 A.D.3d at 897, 969 N.Y.S.2d 70 ). Here, there was a sound and substantial basis for the Family Court's determination that the father should have decision-making authority with respect to the daughter's educational and extracurricular decisions and that the mother should have decision-making authority with respect to the daughter's medical and religious decisions (see Matter of E.D. v. D.T. , 152 A.D.3d at 584, 58 N.Y.S.3d 527 ; Matter of Hardy v. Figueroa , 128 A.D.3d at 826, 9 N.Y.S.3d 140 ; Matter of Ring v. Ring , 15 A.D.3d at 407, 790 N.Y.S.2d 51 ).
The father's remaining contentions are without merit.
MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.