Opinion
2013-05-1
In the Matter of David S. WRIGHT, respondent-appellant, v. Rakatjuuka KAURA, appellant-respondent. (Proceeding No. 1). In the Matter of Rakatjuuka Kaura, appellant-respondent, v. David S. Wright, respondent-appellant. (Proceeding No. 2).
Marc A. Greenberg, Elmsford, N.Y., for appellant-respondent. David S. Wright, Yonkers, N.Y., respondent-appellant pro se.
Marc A. Greenberg, Elmsford, N.Y., for appellant-respondent. David S. Wright, Yonkers, N.Y., respondent-appellant pro se.
Deborah D. Clegg, New Rochelle, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.
In two related custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an amended order of the Family Court, Westchester County (Daly, J.), dated June 23, 2011, as, after a hearing, awarded the parties joint legal custody of the subject child, and the father cross-appeals, as limited by his brief, from so much of the same amended order as awarded the mother sole physical custody of the subject child.
ORDERED that the amended order is reversed insofar as appealed from, on the facts, without costs or disbursements, and the mother is awarded sole legal custody of the subject child; and it is further,
ORDERED that the amended order is affirmed insofar as cross-appealed from, without costs or disbursements.
In a child custody proceeding, the court's paramount concern is to determine what placement, based on the totality of the circumstances, is in the best interests of the child ( see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765;Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Here, the Family Court properly considered the totality of the circumstances in determining that the best interests of the subject child would be served by awarding sole physical custody to the mother ( see Matter of Van Dunk v. Bonilla, 100 A.D.3d 1008, 1009, 955 N.Y.S.2d 150,lv. denied20 N.Y.3d 859, 960 N.Y.S.2d 351, 984 N.E.2d 326).
“[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion” ( Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019;see Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;Matter of Martinez v. Hyatt, 86 A.D.3d 571, 927 N.Y.S.2d 375;Matter of Edwards v. Rothschild, 60 A.D.3d 675, 676–677, 875 N.Y.S.2d 155). “However, joint custody is inappropriate ‘where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child’ ” (Matter of Edwards v. Rothschild, 60 A.D.3d at 677, 875 N.Y.S.2d 155, quoting Matter of Laura A.K. v. Timothy M., 204 A.D.2d 325, 326, 611 N.Y.S.2d 284;see Bliss v. Ach, 56 N.Y.2d at 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;Matter of Martinez v. Hyatt, 86 A.D.3d 571, 927 N.Y.S.2d 375). Since the record here is replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child, the Family Court erred in awarding the parties joint legal custody of the subject child ( see Matter of Gorniok v. Zeledon–Mussio, 82 A.D.3d 767, 768, 918 N.Y.S.2d 516;Matter of Laura A.K. v. Timothy M., 204 A.D.2d at 326, 611 N.Y.S.2d 284). Rather, an award of sole legal custody to the mother is in the child's best interests ( see Matter of Vasquez v. Ortiz, 77 A.D.3d 962, 909 N.Y.S.2d 155;Matter of Jones v. Leppert, 75 A.D.3d 552, 553, 904 N.Y.S.2d 503).