Opinion
March 13, 1989
Appeal from the Supreme Court, Queens County (Modugno, J.H.O.).
Ordered that the judgment is modified, by deleting the fourth decretal paragraph thereof, which awarded custody of the parties' child to the mother, and provided for visitation and substituting therefor a provision awarding custody of the child to the father, and by deleting the fifth decretal paragraph thereof, which provided for child support and maintenance; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a determination as to the mother's visitation rights and a determination of the amount of maintenance based upon findings of fact in compliance with the provisions of the Domestic Relations Law § 236 (B) (6). Pending the determination, the defendant shall continue to pay to the plaintiff the sum of $150 for child support and maintenance; the plaintiff, if she should be so advised, may apply to the Supreme Court, Queens County, to set the terms of interim visitation, which shall be liberal.
It is beyond cavil that the preeminent concern in child custody matters is the best interest of the child (see, Eschbach v Eschbach, 56 N.Y.2d 167; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89; Bonheur v. Bonheur, 138 A.D.2d 441; Matter of Jaeger v. Ward, 128 A.D.2d 530). Further, neither parent has a prima facie right to custody (see, Domestic Relations Law §§ 70, 240). Accordingly, a court must conduct a comprehensive hearing, carefully considering all applicable factors, to determine the best interest of the child (see, Eschbach v. Eschbach, supra; Bonheur v. Bonheur, supra; Matter of Jaeger v. Ward, supra). While due deference must be accorded to the Judicial Hearing Officer, who has seen and evaluated the evidence first hand (see, Matter of Gloria S. v. Richard B., 80 A.D.2d 72; Freiman v. Freiman, 99 A.D.2d 765; see, e.g., Gunn v. Gunn, 143 A.D.2d 393), we would be remiss were we, in blind deference to a finding of a Judicial Hearing Officer, to allow a custody determination to stand where it "lacks * * * substantial basis in the record" and is contrary to the weight of the evidence (see, Matter of Gloria S. v. Richard B., supra, at 76). We conclude that the Judicial Hearing Officer's determination that to remove the child from the custody of the mother "would be a serious traumatic experience which might result in permanent psychological scars" is totally unfounded. We note that it is undisputed that the court-appointed psychiatrist was unable to examine the plaintiff mother in the presence of the child to evaluate the nature of their relationship. Further, we agree with the father that the evidence suggests that the mother, through her own actions, frustrated the attempts by the psychiatrist to conduct this examination.
Moreover, in evaluating the relative fitness of the respective parents (see, Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 250-251, Freiman v. Freiman, supra), we conclude that the father is relatively more fit to be the custodial parent. There is substantial evidence in the record that the mother, who has not had stable employment for some time, lied to the court and the father about her living arrangements, repeatedly interfered with the father's visitations, and maintained a flamboyant life-style inimical to the child's best interests, all relevant considerations in the determination of relative fitness (see, Dornbusch v. Dornbusch, 110 A.D.2d 808, lv denied and appeal dismissed sub nom. Arthur A.D. v. Karen D., 65 N.Y.2d 1024; Fontaine v. Smielak, 92 A.D.2d 880; Matter of Feldman v. Feldman, 45 A.D.2d 320). By contrast, the father, a police officer working the night shift, is not only loving, caring and fully attentive to the child's needs, but he can offer the child a stable home environment where members of his extended family can contribute to the care of the infant when he is working (see, e.g, Crum v Crum, 122 A.D.2d 771).
We remit this case for a new determination on the issue of maintenance, because the Judicial Hearing Officer failed to state the specific reasons for the award (see, Domestic Relations Law § 236 [B] [6]; Brundage v. Brundage, 100 A.D.2d 887). We note that the Judicial Hearing Officer should take into account the reduction in the mother's rental payments and the prospect for her future employment, as evidenced by her representation that she expected to become employed by September 1987 after the child was to be enrolled in school.
Finally, the court did not improvidently exercise its broad discretion in awarding the mother counsel fees (see, Matter of Tavolacci v. Garges, 124 A.D.2d 734). Thompson, J.P., Lawrence, Kunzeman and Rubin, JJ., concur.