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In re Jacobs

Supreme Court of New York, Second Department

June 19, 2013

In the Matter of Ethan Jacobs, appellant,
v.
Stephanie Young, respondent. Docket Nos. V-37482-07, V-37549-08

Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine of counsel), attorney for the child.

Cheryl Charles-Duval, Brooklyn, N.Y., for appellant.

Elliot Green, Brooklyn, N.Y., for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, LEONARD B. AUSTIN, JJ.

DECISION & ORDER

In a custody and visitation proceeding 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, Kings County (Cammer, J.H.O.), dated August 10, 2011, as, after a hearing, denied his petition for sole custody of the subject child, in effect, granted the mother's cross petition for sole custody of the subject child, and awarded the mother decision-making authority with respect to the child's education.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof awarding the mother decision-making authority with respect to the subject child's education, and substituting therefor a provision awarding the father decision-making authority with respect to the child's education; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see Eschbach v Eschbach, 56 N.Y.2d 167), which requires evaluation of the "totality of [the] circumstances" (Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 95-96). Here, the Family Court fashioned an appropriate award of sole custody to the mother, which provides for the father's visitation with the subject child (see Matter of Vialardi v Vialardi, 67 A.D.3d 921; Matter of Edwards v Rothschild, 60 A.D.3d 675, 677-668; Allain v Allain, 35 A.D.3d 513, 513-514).

When joint custody is not possible because of the antagonistic relationship between the parties (see Braiman v Braiman, 44 N.Y.2d 584, 591; Robinson v Robinson, 111 A.D.2d 316, 318), it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent (see Chamberlain v Chamberlain, 24 A.D.3d 589, 591; Matter of Ring v Ring, 15 A.D.3d 406; Matter of Penninipede v Penninipede, 6 A.D.3d 445, 446). The division of authority should be made in a manner intended to take advantage of the strengths and abilities of the noncustodial parent with respect to a particular dimension of child-rearing (see Chamberlain v Chamberlain, 24 A.D.3d at 591; Matter of Penninipede v Penninipede, 6 A.D.3d at 446; Mars v Mars, 286 A.D.2d 201, 202-203).

The Family Court's determination that it would be in the child's best interests to award the mother decision-making authority with respect to the child's education is not supported by a sound and substantial basis in the record. The father researched educational options for the subject child at every stage of his schooling. Once the child started school and began receiving homework assignments, the father supervised his homework, took part in school-related activities, and remained involved with his schooling at every stage. The father contacted the child's teachers regarding issues of concern.

The mother was considerably less involved with the child's schooling. She maintained a strong preference for a private-school education at a particular school, attendance at which had been a tradition within her family. However, she failed to demonstrate that the school she preferred was a better choice for the child than public school, or that the tuition at the private school was within the parties' means.

Accordingly, we modify the order to direct that the father have decision-making authority with respect to the child's education (see Chamberlain v Chamberlain, 24 A.D.3d at 592; Matter of Ring v Ring, 15 A.D.3d at 406; Matter of Penninipede v Penninipede, 6 A.D.3d at 446).

MASTRO, J.P., DILLON, DICKERSON and AUSTIN, JJ., concur.


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