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10397 & Anonymous v. Anonymous

Supreme Court of New York, First Department

June 18, 2013

10397 & Anonymous, Plaintiff-Appellant,
v.
Anonymous, Defendant-Respondent.

Raoul Felder & Partners, P.C., New York (Myrna Felder of counsel), for appellant.

Mulhern & Klein, New York (Jeff Klein of counsel), for respondent.

Karen D. Steinberg, New York, attorney for the children.

Andrias, J.P., Friedman, Moskowitz, DeGrasse, Feinman, JJ.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered October 17, 2012, which, after a nonjury trial, granted primary physical custody and sole legal custody of the parties' two children to defendant mother, with visitation to plaintiff father, unanimously affirmed, without costs.

The court's determination was based on a thorough assessment of the testimony of the parties and the court-appointed forensic expert, and has a sound and substantial basis in the record (see Eschbach v Eschbach, 56 N.Y.2d 167, 173-174 [1982]). The evidence demonstrates that the acrimony and mistrust between the parties makes joint custody a nonviable option (see Braiman v Braiman, 44 N.Y.2d 584, 589-590 [1978]). Indeed, the parties have disagreed on most decisions with respect to the children, including important matters involving education, extracurricular activities and medical care. The record also shows that when the joint custody arrangement was in place during the pendency of this litigation, the father did not maximize the time that he spent with the children, as he often left the children with a caregiver.

The court appropriately weighed each party's strengths and weaknesses as a parent, and found the mother to be more willing to accept and address the children's respective special needs, which will be more conducive to their emotional and intellectual development (see Lubit v Lubit, 65 A.D.3d 954, 955 [1st Dept 2009], lv denied 13 N.Y.3d 716 [2010], cert denied _ U.S. _, 130 S.Ct. 3362 [2010]). The mother was also the children's primary caretaker before the commencement of this litigation (id.).

We have considered the father's remaining contentions and find them unavailing.

Motion to amend the caption to change the names of the parties granted to the extent indicated.


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