Opinion
670 CAF 18-01663
10-02-2020
In the Matter of Thomas J. FOSTER, Petitioner-Appellant, v. Melissa M. OUDERKIRK, Respondent-Respondent. In the Matter of Melissa M. Ouderkirk, Petitioner-Respondent, v. Thomas J. Foster, Respondent-Appellant.
TYSON BLUE, MACEDON, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. ROY G. FRANKS, MARION, FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.
TYSON BLUE, MACEDON, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
ROY G. FRANKS, MARION, FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this custody proceeding pursuant to article 6 of the Family Court Act, petitioner-respondent father appeals from an order of Family Court that, inter alia, continued primary physical custody of the parties' child with respondent-petitioner mother. We affirm.
"The court's determination in a custody matter is entitled to great deference and will not be disturbed where, as here, it is based on a careful weighing of appropriate factors" ( Matter of Stevenson v. Smith , 145 A.D.3d 1598, 1598, 43 N.Y.S.3d 832 [4th Dept. 2016] [internal quotation marks omitted]; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 172-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). As the court noted in its decision, "both parties are fit parents who love the subject child and are determined to act in his best interests." Although an award of primary physical custody to the father would not have been unreasonable based on the evidence adduced at the hearing, we nevertheless conclude that there is a sound and substantial basis in the record for the court's determination that it is in the child's best interests to continue his primary physical residence with the mother (see Stevenson , 145 A.D.3d at 1599, 43 N.Y.S.3d 832 ).