Opinion
April 28, 1986
Appeal from the Family Court, Nassau County (De Maro, J.).
Order, as amended, reversed, on the law and the facts, with costs, custody of the children is awarded to the appellant mother and the proceeding is remitted to the Family Court, Nassau County, to determine the visitation to be awarded to the petitioner, in accordance herewith. In the interim, the petitioner is awarded visitation as it was established under an order of the Family Court, Nassau County, dated May 10, 1985, which temporarily fixed custody and visitation.
Although custody determinations are ordinarily a matter of discretion for the trial court, this court cannot allow a custody determination to stand where it lacks a sound and substantial basis in the record and is contrary to the weight of the credible evidence (see, Freiman v. Freiman, 99 A.D.2d 765; Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76). The Family Court's finding that a change of custody to the petitioner was in the best interests of the children (see, Eschbach v. Eschbach, 56 N.Y.2d 167; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89), is not supported by the record. The Forensic Services Section of the Nassau County Department of Mental Health, the Nassau County Probation Department and the children's court-appointed Law Guardian all recommended that custody of the children remain with their natural mother and nothing in the parties' testimony at the Family Court hearing speaks for a different conclusion. The Family Court failed to state, in its decision, any reason for disregarding the collective recommendations of these disinterested persons. Additionally, the Family Court apparently failed to consider the parties' prior voluntary agreement which, except for a disputed period of some three to seven months, gave physical custody of the children to the respondent (see, Friederwitzer v. Friederwitzer, supra; Alan G. v. Joan G., 104 A.D.2d 147, 153, appeal dismissed 64 N.Y.2d 1040).
Joint custody of the children is not advisable in this situation since the parties have not demonstrated that they have a stable, amicable relationship (see, Braiman v. Braiman, 44 N.Y.2d 584, 590-591; Matter of Bishop v. Lansley, 106 A.D.2d 732). However, a liberal visitation schedule is desirable and this matter is remitted to the Family Court for an award of visitation on alternate weekends, plus whatever additional days or evenings, holidays and vacation periods are convenient for the parties. In the interim, the petitioner is to have visitation as it was established under the Family Court's temporary custody and visitation order, dated May 10, 1985. Rubin, J.P., Lawrence, Eiber and Spatt, JJ., concur.