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Vialardi v. Vialardi

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


November 17, 2009

IN THE MATTER OF ERIN VIALARDI, RESPONDENT,
v.
ROBERT VIALARDI, APPELLANT. (PROCEEDING NO. 1)
IN THE MATTER OF ROBERT VIALARDI, APPELLANT,
v.
ERIN VIALARDI, RESPONDENT. (PROCEEDING NO. 2)

In related child custody proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Westchester County (Klein, J.), dated November 25, 2008, as, after a hearing, awarded the mother final decision-making authority for the subject child.

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.

MARK C. DILLON, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO and THOMAS A. DICKERSON, JJ.

(Docket Nos. V-6542-07, V-7118-07)

DECISION & ORDER

ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, by adding a provision thereto providing that the mother must consult with the father prior to exercising her final decision-making authority for the subject child; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

While a custody award is a matter within the discretion of the trial court, whose determination is entitled to great weight on appeal (see Eschbach v Eschbach, 56 NY2d 167, 173; Matter of Waldron v Dussek, 48 AD3d 471), here, the court should have directed that the mother consult with the father with respect to any issues involving the child's health, medical care, education, religion, and general welfare prior to exercising her final decision-making authority for the subject child.

DILLON, J.P., MILLER, ANGIOLILLO and DICKERSON, JJ., concur.

20091117

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