WILLIAMS v. WILLIAMS (2012)

Defendant mother appeals from an order modifying the custody provisions of the parties' judgment of divorce and granting sole legal and physical custody of the parties' two children to plaintiff father and visitation to the mother. Supreme Court properly determined that joint custody is inappropriate “inasmuch as the parties have an acrimonious relationship and are unable to communicate with each other in a civil manner” (Matter of Christopher J.S. v. Colleen A.B., 43 A.D.3d 1350, 1351, 842 N.Y.S.2d 627). Contrary to the mother's contention, the court properly determined that the best interests of the children warranted the award of sole custody to the father. “The best interests of a child, which is the foremost consideration in matters of custody and visitation, is within the discretion of the hearing court whose determination will not be set aside unless it lacks a sound and substantial evidentiary basis” (Matter of Arelis Carmen S. v. Daniel H., 78 A.D.3d 504, 504, 911 N.Y.S.2d 49, lv. denied 16 N.Y.3d 707, 2011 WL 1120107; see Dubuque v. Bremiller, 79 A.D.3d 1743, 1744, 913 N.Y.S.2d 855). Here, we see no reason to disturb the court's custody determination inasmuch as it is supported by the requisite “sound and substantial basis in the record” (Dubuque, 79 A.D.3d at 1744, 913 N.Y.S.2d 855 [internal quotation marks omitted] ). We agree with the court's conclusion that, although both parties appear to be fit and loving parents, the evidence presented at the hearing establishes that the father is better able to provide for the children's educational and medical needs.

We further conclude, however, that the court erred in limiting the mother's visitation to alternate weekends. Although there was a sound and substantial basis in the record for the court's determination to modify the prior visitation schedule (see generally Matter of Nicole J.R. v. Jason M.R., 81 A.D.3d 1450, 1451, 917 N.Y.S.2d 495, lv. denied 17 N.Y.3d 701, 2011 WL 2183839; Matter of Flood v. Flood, 63 A.D.3d 1197, 1198, 880 N.Y.S.2d 748), we agree with the mother and the Attorney for the Children that the court erred in eliminating visitation between the mother and the children during the week. Thus, we conclude that the court “improvidently exercised its discretion in determining the amount of visitation for the [mother], which did not include an award of weekday ․ visitation” (Matter of Solovay v. Solovay, 94 A.D.3d 898, 900, 941 N.Y.S.2d 712, lv. denied 19 N.Y.3d 808, 2012 WL 2429241; see Matter of Brown v. Brown, 97 A.D.3d 673, 674, 948 N.Y.S.2d 349; see generally Matter of Roody v. Charles, 283 A.D.2d 945, 946, 723 N.Y.S.2d 910).

Based on the record before us, we conclude that the best interests of the children would be served by awarding the mother an additional day of visitation each week on a specific weekday, which visitation shall begin at the completion of the children's school day and shall continue until such time in the evening that they are able to return to the father's home for their regular bedtime. We therefore modify the order accordingly, and we remit the matter to Supreme Court to set a specific day of the week and the specific times during which such visitation should occur, either upon agreement of the parties or after a hearing if they are unable to agree.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by awarding defendant an additional day of visitation each week on a specific weekday, which visitation shall begin at the completion of the children's school day and shall continue until such time in the evening that they are able to return to plaintiff's home for their regular bedtime, and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Onondaga County, for further proceedings.

MEMORANDUM: