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Damien P. C. v. Jennifer H.S.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 11, 2008

IN RE DAMIEN P. C., PETITIONER-RESPONDENT-APPELLANT,
v.
JENNIFER H.S., RESPONDENT-APPELLANT-RESPONDENT.

Order, Family Court, New York County (Helen C. Sturm, J.), entered on or about April 1, 2008, which, to the extent appealed from, granted respondent mother full residential custody of the subject children, and granted petitioner father a) final decision-making authority as to the children's extracurricular activities, b) three out of four consecutive weekends from Thursday evening until Monday morning drop-off at school, c) either Thanksgiving or Christmas with the children each year, and d) a restriction against the mother relocating with the children more than 35 miles from his residence, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., McGuire, Acosta, DeGrasse, Freedman, JJ.

Contrary to the father's contention, the Law Guardian's advocacy of positions favoring the mother did not indicate improper bias. Nor was there any basis for refuting the court's finding that the forensic expert's testimony was credible. Under the factors to be considered in determining custody (see Eschbach v Eschbach, 56 NY2d 167 [1982]), the parties were equally qualified, with one exception. Regarding who would better facilitate the relationship between the children and the non-custodial parent, the court agreed with the forensic expert's findings that the mother was the superior parent, based on evidence that she invited the father to the children's birthday parties and encouraged him to visit on numerous occasions while she had custody, whereas he withheld information about schooling and refused her admittance to the apartment when they were with him. The grant of residential custody to the mother was proper, supported by the record, and was balanced with ample rights of access to the father at holidays and year-round.

The mother contends the court erred with regard to the particular days and schedule of the father's visitation, his role in planning extracurricular activities, and the split of holidays. In light of the father's intense involvement in the children's lives, as well as the parties' equal split of time with the children over the past five years, we find the court's allocation to have been a proper exercise of discretion.

With regard to the geographical limitation on the mother's relocation, she points to a Yorktown Heights house 41 miles away in which she can stay with the children. Given the proximity of the respective parental residences to each other, the court providently exercised its discretion in limiting the mother's relocation to a reasonable distance of 35 miles from the father's home.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081211

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