- November 17, 2017
D. Futerfas, White Plains, NY, for appellant.
Annette G. Hasapidis, South Salem, NY, for respondent.
Jessica Bacal, Mount Kisco, NY, attorney for the child.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS COLLEEN D. DUFFY
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from an order of the Family Court, Orange County (Lori
Currier Woods, J.), dated August 4, 2016. The order, insofar
as appealed from, after a hearing, denied the father's
motion to modify a prior order of custody and visitation of
that court entered June 26, 2015, upon the parties'
consent, to award him sole legal and physical custody of the
parties' child, awarded the parties shared physical
custody of the child pursuant to a detailed parenting
schedule, awarded the mother final authority with respect to
the child's medical and religious decisions, directed the
parties to refer any dispute regarding parenting time or the
provisions of the order to the Parenting Solutions program,
and denied the father's request for an award of an
that the order dated August 4, 2016, is affirmed insofar as
appealed from, without costs or disbursements.
parties, who never married, are the parents of a daughter
born in 2006. The mother and the daughter moved out of the
father's home in 2009. In an order of custody and
visitation entered June 26, 2015, upon the parties'
consent, the Family Court, in effect, awarded the mother sole
residential custody of their daughter. The father
subsequently moved to obtain sole legal and physical custody
of the daughter. The court held a hearing and, after
determining that there was a change in circumstances, inter
alia, awarded the parties joint legal and physical custody of
the daughter and set up detailed parenting schedules for the
school year as well as the summer. The father appeals.
court's paramount concern in any custody dispute is to
determine, under the totality of the circumstances, what is
in the best interests of the child (see Eschbach v
Eschbach, 56 N.Y.2d 167, 171; Matter of Gooler v
Gooler, 107 A.D.3d 712; Matter of Julie v
Wills, 73 A.D.3d 777, 777). '"Since any custody
determination depends to a very great extent upon the hearing
court's assessment of the credibility of the witnesses
and of the character, temperament, and sincerity of the
parties, its findings are generally accorded great respect
and will not be disturbed unless they lack a sound and
substantial basis in the record, or are contrary to the
weight of the evidence'" (Matter of Diaz v
Diaz, 97 A.D.3d 747, 747, quoting Matter of Chabotte
v Faella, 77 A.D.3d 749, 749-750; see Trinagel v
Boyar, 70 A.D.3d 816).
to the father's contention, the Family Court properly
denied that branch of his motion which was to be awarded sole
physical custody of the daughter. The court's
determination that the daughter would benefit from equal
amounts of time with each parent, and that it would be in her
best interests for physical custody to be shared by the
parents, has a sound and substantial basis in the record and
will not be disturbed (see Matter of Hardy v
Figueroa, 128 A.D.3d 824, 825; Matter of Delgado v
Frias, 92 A.D.3d 1245; Matter of Conway v
Conway, 89 A.D.3d 936, 936-937). Notably, although the
court determined that there was an antagonistic relationship
between the parties (see generally Bliss v Ach, 56
N.Y.2d 995, 998; Braiman v Braiman, 44 N.Y.2d 584,
589-590), such a determination, without more, does not mean
that an award of shared physical custody is inappropriate
(see Matter of Hardy v Figueroa, 128 A.D.3d at 825;
Matter of Delgado v Frias, 92 A.D.3d at 1245;
Wideman v Wideman, 38 A.D.3d 1318, 1319).
the Family Court was not required to follow the
recommendations of the forensic expert (see Matter of
E.D. v D.T., 152 A.D.3d 583, 584; Matter of
Nelson v Nelson, 276 A.D.2d 634, 634; Matter of
Prete v Prete, 193 A.D.2d 804, 805) and, contrary to the
father's contention, the court's stated reasons for
disregarding the expert's recommendation had a sound and
substantial basis in the record (compare Zafran v
Zafran, 306 A.D.2d 468, 469-470, and Vinciguerra v
Vinciguerra, 294 A.D.2d 565, 566, with Matter of
Wilson v Bryant, 143 A.D.3d 905, 907).
antagonistic relationship exists between the parties, it may
be appropriate, depending upon the particular circumstances
of the case, to give each party decision-making authority in
separate areas (see Matter of Hardy v Figueroa, 128
A.D.3d at 826; Jacobs v Young,107 A.D.3d 896, 897;
Chamberlain v Chamberlain,24 A.D.3d 589, 591;
Matter of Ring v Ring,15 A.D.3d 406). "The
division of authority is usually made either somewhat evenly,
in order to maintain the respective roles of each parent in
the child's life or, although unevenly, in a manner
intended to take advantage of the strengths [or] demonstrated
ability" of each parent (Chamberlain v
Chamberlain, 24 A.D.3dat592 [citations omitted]; see
Jacobs v Young, 107 A.D.3d at 897). Here, there was a
sound and substantial basis for the Family Court's
determination that the father should have decision-making
authority with respect to the daughter's educational and
extracurricular decisions and that the mother ...