KING v. KING (1998)

 Family Court properly denied the petition seeking legal and physical custody of the children and granted respondent's cross petition for that same relief.   The court's determination is “based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” (Matter of Hill v. Rogers, 213 A.D.2d 1079, 625 N.Y.S.2d 991;  see, Matter of Smith v. Smith, 241 A.D.2d 980, 667 N.Y.S.2d 141).   The record supports the court's determination that the best interests of the children warrant their residence with respondent (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  cf., Fox v. Fox, 177 A.D.2d 209, 211-212, 582 N.Y.S.2d 863).   With respect to the various factors considered by the court (see, Fox v. Fox, supra, at 210, 582 N.Y.S.2d 863), we conclude that the only factor in petitioner's favor is that respondent violated a prior court order.   Nevertheless, the court found, and we agree, that respondent's conduct was not willful (cf., Matter of Ray v. Woodman, 244 A.D.2d 716, 664 N.Y.S.2d 378).   In any event, “ ‘[d]efiance of a court order is but one factor to be considered when determining the relative fitness of the parties and what custody arrangement is in the [children's] best interests' ” (Barnes v. Barnes, 234 A.D.2d 959, 651 N.Y.S.2d 776, quoting Wodka v. Wodka, 168 A.D.2d 1000, 1001, 565 N.Y.S.2d 353).

 We agree with petitioner that the court erred in ordering that “there should be a change in the jurisdiction in future matters in regards to these proceedings to the State of California”.   The parties did not raise any jurisdictional issues in this proceeding, and the issue of jurisdiction in future proceedings must await an actual controversy.   Thus, we modify the order by vacating the 17th ordering paragraph.

We have considered the remaining contentions of petitioner and conclude that they are without merit.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: