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In re David H.

Supreme Court of New York, First Department

November 21, 2013

In re David H., Petitioner-Appellant,
v.
Khalima H., Respondent-Respondent.

Neal D. Futerfas, White Plains, for appellant.

Leslie S. Lowenstein, Woodmere, for respondent.

Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.

Gonzalez, P.J., Tom, Renwick, Freedman, Clark, JJ.

Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about August 27, 2012, which, after a hearing, granted joint legal custody of the subject child to the parties, with primary residential custody to respondent mother, unanimously affirmed, without costs.

A sound and substantial basis in the record supports the determination that it is in the child's best interests to remain in the custody of respondent mother, who has been the child's primary care giver for all but two years of his life. The court reached this determination after a full evidentiary hearing at which it heard testimony from, inter alia, both parents and interviewed the child in camera (see Matter of Ricardo S. v Carron C., 91 A.D.3d 556 [1st Dept 2012]).

The evidence established that although both parties provide loving, nurturing homes, the child is doing well in respondent mother's care and is succeeding academically. Although respondent's boyfriend engaged in inappropriate corporal punishment when the child was younger, there is no indication of a continuing problem or any countervailing circumstances warranting a change in the custody arrangement (see Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 95 [1982]). To the extent the child wishes to spend more time with petitioner father, the court expressly stated that petitioner "is to have extensive parenting time" and directed that respondent not relocate with the child absent the father's consent or permission of the court. Given the "cooperative nature of the parenting relationship" as noted by the Family Court, it is not in the child's best interests to disturb the current custody arrangement.


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