Opinion
November 15, 1991
Appeal from the Onondaga County Family Court, McLaughlin, J.
Present — Doerr, J.P., Denman, Boomer, Green and Davis, JJ.
Order unanimously reversed on the law with costs and petition dismissed. Memorandum: Family Court erred by granting an order changing custody of this 12-year-old boy from his mother to his father. When considering a petition for a change of custody, absent countervailing circumstances, the court should give priority to the agreement of the parties concerning which parent should have custody. Here, the mother had been granted custody in October 1982 by stipulated order and had always been the custodial parent.
Moreover, the court must consider which parent can best fulfill the child's emotional, educational, and financial needs (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171-173; Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 94; Keating v. Keating, 147 A.D.2d 675, 677, lv dismissed 74 N.Y.2d 791). The wishes of the child should be considered, but should not be determinative (Eschbach v. Eschbach, supra, at 173; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702).
Here, petitioner's proof, which consisted solely of the child's testimony that he wished to live with petitioner, was completely inadequate to support the modification of a long-standing custody order. The child refused to give any reasons for his preference. Moreover, respondent's unrebutted testimony at the hearing, that the father refused to give the boy his asthma medication, allowed the child to engage in dangerous activities and exposed the child to pornography during his visitation with the child, cast considerable doubt upon the father's parenting abilities.