Opinion
2014-07829 (Docket Nos. V-16958-13, V-21003-13)
05-13-2015
In the Matter of Colin James HARDY, respondent, v. Melissa FIGUEROA, appellant. (Proceeding No. 1) In the Matter of Melissa Figueroa, appellant, v. Colin James Hardy, respondent. (Proceeding No. 2).
Katsandonis, P.C., New York, N.Y. (John Katsandonis of counsel), for appellant. Elliot Green, Brooklyn, N.Y., for respondent.
Katsandonis, P.C., New York, N.Y. (John Katsandonis of counsel), for appellant.
Elliot Green, Brooklyn, N.Y., for respondent.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.
Opinion Appeal from an amended order of the Family Court, Kings County (Leticia M. Ramirez, J.), dated July 23, 2014. The amended order, among other things, awarded the parties shared physical custody of the subject child, awarded the father final authority with respect to the child's educational, extracurricular, and religious decisions, and awarded the mother final authority with respect to the child's medical decisions.ORDERED that the amended order is affirmed, without costs or disbursements.
In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). The best interests of the child are determined by a review of the totality of the circumstances (see id. at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Jacobs v. Young, 107 A.D.3d 896, 896–897, 969 N.Y.S.2d 70 ; Matter of Anwar v. Sani, 78 A.D.3d 827, 910 N.Y.S.2d 656 ). “Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record” (Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273 ; see Matter of Solovay v. Solovay, 94 A.D.3d 898, 899, 941 N.Y.S.2d 712 ; Matter of Conway v. Conway, 89 A.D.3d 936, 936–937, 933 N.Y.S.2d 75 ; Matter of Ross v. Ross, 86 A.D.3d 615, 616, 928 N.Y.S.2d 303 ).
Contrary to the mother's contention, the Family Court did not improvidently exercise its discretion in refusing to award her primary physical custody of the subject child. Both the mother and the father sought primary physical custody, and the Family Court's determination that the child would benefit from equal amounts of time with each parent, and that it would be in his best interest for physical custody to be shared by the parents, is supported by a sound and substantial basis in the record and will not be disturbed (see 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 at 936–937, 933 N.Y.S.2d 75 ; Matter of Anwar v. Sani, 78 A.D.3d at 827, 910 N.Y.S.2d 656 ; Wideman v. Wideman, 38 A.D.3d 1318, 834 N.Y.S.2d 405 ). Notably, although the court determined that the antagonistic relationship between the parties effectively precluded an award of joint legal custody (see Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ; Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349 ; Matter of Florio v. Niven, 123 A.D.3d 708, 710, 997 N.Y.S.2d 728 ; Matter of Edwards v. Rothschild, 60 A.D.3d 675, 676–677, 875 N.Y.S.2d 155 ), such a determination does not mean that an award of shared physical custody is inappropriate (see Matter of Delgado v. Frias, 92 A.D.3d at 1245, 937 N.Y.S.2d 814 ; Wideman v. Wideman, 38 A.D.3d at 1319, 834 N.Y.S.2d 405 ; see generally 1–10 Child Custody and Visitation Law and Practice § 10.03[3][b]; Pascale v. Pascale, 140 N.J. 583, 660 A.2d 485 ; Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 ).
Moreover, in light of the Family Court's conclusion that an award of joint legal custody was not appropriate because of the parties' inability to cooperate and behave amicably, and considering the circumstances of the case, it was appropriate for the Family Court to give each party decision-making authority in separate areas (see Matter of Jacobs v. Young, 107 A.D.3d at 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, 407, 790 N.Y.S.2d 51 ). In this regard, the Family Court's determination awarding the father final authority with respect to the child's educational, extracurricular, and religious decisions, and awarding the mother final authority with respect to the child's medical decisions, is also supported by a sound and substantial basis in the record and will not be disturbed (see Matter of Ring v. Ring, 15 A.D.3d at 407, 790 N.Y.S.2d 51 ; cf. Matter of Jacobs v. Young, 107 A.D.3d at 896–897, 969 N.Y.S.2d 70 ).
The mother's remaining contention is without merit.