This does not mean, however, that there is a presumption against joint custody or that voluntary consent is a sine qua non for a judicial award of joint custody. Indeed, where the record demonstrates that the parents are not hostile or embittered, the Court of Appeals, this court and the other appellate departments have approved awards of joint custody irrespective of the fact that the parents did not consent to, or agree upon, that arrangement (see, for example, Matter of Jones v Jones, 65 N.Y.2d 649; Anastasia v Anastasia, 100 A.D.2d 740 [4th Dept]; Bazant v Bazant, 80 A.D.2d 310, supra [4th Dept]; Guarnier v Guarnier, 155 A.D.2d 744 [3d Dept]; Mary M. v Albert J.M., 154 A.D.2d 354 [2d Dept]; Matter of Venable v Venable, 122 A.D.2d 374 [3d Dept]; Matter of Martin v Martin, 113 A.D.2d 943 [2d Dept]; Taylor v Taylor, 109 A.D.2d 709 [1st Dept]). These cases reflect the principle that the primary concern is the best interest of the child, not whether the parties have reached a voluntary agreement.
Ordered that the order and judgment is affirmed insofar as appealed from, without costs or disbursements. Upon this record, we find that the trial court carefully considered the totality of the circumstances involved in determining the best interest of the children (see, Eschbach v Eschbach, 56 N.Y.2d 167, 171) and properly maintained the joint custody arrangement agreed to by the parties, while determining that physical residence of the children should be with their father (see, Matter of Martin v Martin, 113 A.D.2d 943). Eiber, J.P., Kooper and Spatt, JJ., concur. Harwood, J., concurs, with the following memorandum:
(Spain v Spain, 130 A.D.2d 806; Braiman v Braiman, 44 N.Y.2d 584; Dodd v Dodd, 93 Misc.2d 641; Perotti v Perotti, 78 Misc.2d 131.) In Matter of Martin v Martin ( 113 A.D.2d 943), the Appellate Division, Second Department, held that an award of joint custody was appropriate, where there were some difficulties between the parties, but there was an absence of severe antagonism. Likewise, in Matter of Venable v Venable ( 122 A.D.2d 374), the Appellate Division, Third Department, denied an application for modification of a joint custody order, stating that both parties love the child, can adequately care for him, and "there is no indication that the parties are incapable of communicating with one another concerning their child".