IN RE: Harrison Joseph EDWARDS III (2009)

In related custody and visitation proceedings pursuant to Family Court Act article 6, (1) the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated November 14, 2007, as denied that branch of her cross petition which was for sole custody of the parties' children, denied her motion for an attorney's fee, and awarded the father residential custody of the parties' children, and the father cross-appeals, as limited by his brief, from so much of the same order as denied that branch of his petition which was for sole custody of the children and directed that, on the alternate weekends that the mother does not have the children, she shall, unless the father has made plans with the children, have parenting time on those Sundays from 10:00 A.M. until 7:00 P.M., and (2) the father appeals, as limited by his brief, from so much of an amended order of the same court dated November 26, 2007, as appointed a Parenting Coordinator and authorized the Parenting Coordinator to resolve issues between the parties.

ORDERED that the order dated November 14, 2007, is affirmed insofar as appealed from, without costs or disbursements;  and it is further,

ORDERED that the order dated November 14, 2007, is reversed insofar as cross-appealed from, without costs or disbursements, and that branch of the father's petition which was for sole custody of the children is granted;  and it is further,

ORDERED that the amended order dated November 26, 2007, is modified, on the law, by deleting so much of the fifth decretal paragraph as authorized the Parenting Coordinator to resolve issues between the parties;  as so modified, the amended order is affirmed insofar as appealed from, without costs or disbursements.

 When determining custody cases, the primary concern is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Musachio v. Musachio, 53 A.D.3d 600, 601, 862 N.Y.S.2d 376;  Mohen v. Mohen, 53 A.D.3d 471, 472-473, 862 N.Y.S.2d 75;  Matter of Perez v. Martinez, 52 A.D.3d 518, 519, 860 N.Y.S.2d 128).   The Family Court's determination is generally accorded great deference on appeal, since it had the opportunity to assess the witnesses' demeanor and credibility (see Matter of Perez, 52 A.D.3d at 519, 860 N.Y.S.2d 128;  Eschbach v. Eschbach, 56 N.Y.2d at 173-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Musachio v. Musachio, 53 A.D.3d at 601-602, 862 N.Y.S.2d 376;  Matter of Summer A., 49 A.D.3d 722, 725-726, 854 N.Y.S.2d 195).   Nevertheless, “the authority of an appellate court is as broad as that of the Family Court” (Matter of Summer A., 49 A.D.3d at 726, 854 N.Y.S.2d 195;  see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091;  Matter of Hyde v. King, 47 A.D.3d 813, 814, 849 N.Y.S.2d 650).

 Joint custody is encouraged “as a voluntary alternative for relatively stable, amicable parents behaving in a civilized fashion” (Braiman v. Braiman, 44 N.Y.2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019;  see Matter of Timothy M. v. Laura A.K., 204 A.D.2d 325, 326, 611 N.Y.S.2d 284;   Matter of George W.S. v. Donna S., 187 A.D.2d 657, 658, 590 N.Y.S.2d 262).   However, joint custody is inappropriate “where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child” (Matter of Timothy M. v. Laura A.K., 204 A.D.2d at 326, 611 N.Y.S.2d 284;  see Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;  Braiman, 44 N.Y.2d at 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019;  Matter of Garcia v. Scruggs, 44 A.D.3d 660, 661, 843 N.Y.S.2d 166;  Matter of McCoy v. McCoy, 43 A.D.3d 469, 841 N.Y.S.2d 139;   Matter of Fishburne v. Teelucksingh, 34 A.D.3d 804, 805, 828 N.Y.S.2d 70;   Matter of Tavarez v. Musse, 31 A.D.3d at 458, 817 N.Y.S.2d 667;  Matter of Bornholdt v. Alfieri, 201 A.D.2d 560, 607 N.Y.S.2d 712).

 After a lengthy hearing, the Family Court denied both parents' requests for sole custody, and instead awarded joint custody.   However, the record demonstrates that the parents were antagonistic, embattled, and unable to set aside their differences to facilitate decision-making and cooperate on matters in the best interests of their children (see Bliss v. Ach, 56 N.Y.2d at 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;  Braiman, 44 N.Y.2d at 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019;  Matter of Manfredo v. Manfredo, 53 A.D.3d 498, 500, 861 N.Y.S.2d 399;  Matter of Garcia, 44 A.D.3d at 661, 843 N.Y.S.2d 166;  Matter of McCoy, 43 A.D.3d at 469, 841 N.Y.S.2d 139;  Matter of Fishburne, 34 A.D.3d at 805, 828 N.Y.S.2d 70;  Matter of Tavarez, 31 A.D.3d at 458, 817 N.Y.S.2d 667;  Matter of Bornholdt, 201 A.D.2d at 560, 607 N.Y.S.2d 712;  Matter of George W.S., 187 A.D.2d at 658, 590 N.Y.S.2d 262).   Under these circumstances, the court should not have awarded the parties joint custody of the children.

 In determining the custody arrangement that is in the child's best interests, the court must consider multiple factors.   These include “the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent” (Miller v. Pipia, 297 A.D.2d 362, 364, 746 N.Y.S.2d 729;  see Mohen v. Mohen, 53 A.D.3d at 472-473, 862 N.Y.S.2d 75;  Matter of Summer A., 49 A.D.3d at 725-726, 854 N.Y.S.2d 195;  Matter of Langlaise v. Sookhan, 48 A.D.3d 685, 685, 850 N.Y.S.2d 917).

 Although both parties are loving and responsible parents, the record demonstrates that awarding sole custody to the father is in the best interests of the children.   While it is true that the recommendation of a court-appointed expert is but one factor to be considered in making a custody determination and is not determinative, such recommendation is entitled to some weight (see Matter of Nikolic v. Ingrassia, 47 A.D.3d 819, 821, 850 N.Y.S.2d 539;  Matter of McCoy v. McCoy, 43 A.D.3d 469, 841 N.Y.S.2d 139;  Matter of Berrouet v. Greaves, 35 A.D.3d 460, 461, 825 N.Y.S.2d 719;  Miller v. Pipia, 297 A.D.2d 362, 365, 746 N.Y.S.2d 729;  Young v. Young, 212 A.D.2d 114, 118, 628 N.Y.S.2d 957).   Thus, in awarding the father sole custody, we take into account the court-appointed expert's finding that the father is better able to provide the children with a structured and stable home environment.   The expert also opined that while the mother had demonstrated a good relationship with the children, she had difficulty in setting boundaries and making mature decisions for them.   Although the Family Court declined to award the father sole custody, it did award him residential custody, recognizing that the mother struggled to let go of the past and deal realistically in the present.

There is no evidence in the record establishing that an award of custody to the father would have a significant adverse effect on the children's relationship with the mother.   By contrast, there is evidence that the mother had been coaching the children in an attempt to undermine the father's authority.

Moreover, the children have resided with the father since these lengthy proceedings began more than three years ago.   They are well-adjusted, happy, and successful in school.   It would be disruptive to remove the children from their father's house and their established routine.   Furthermore, the father is insuring that the children maintain a strong and continuing relationship with the mother.

 We also reverse that portion of the order dated November 14, 2007, which directed that, on the alternate weekends that the mother does not have the children, she shall, unless the father has made plans with the children, have parenting time on those Sundays from 10:00 A.M. until 7:00 P.M.   This provision unfairly infringes upon the father's parenting time.

Contrary to the mother's contention, the Family Court did not improvidently exercise its discretion in denying her motion for an award of an attorney's fee (see Matter of Gebaide v. Gebaide, 44 A.D.3d 662, 841 N.Y.S.2d 888;  Matter of Sullivan v. Sullivan, 40 A.D.3d 865, 867, 836 N.Y.S.2d 259;  Matter of Belle v. DeMilia, 19 A.D.3d 691, 691-692, 798 N.Y.S.2d 104;  Matter of O'Neil v. O'Neil, 193 A.D.2d 16, 18-20, 601 N.Y.S.2d 628).

 Finally, we modify the amended order dated November 26, 2007, by deleting the provision thereof authorizing the Parenting Coordinator to resolve issues between the parties, since this constitutes an improper delegation of the court's authority to determine issues relating to visitation (see Matter of Held v. Gomez, 35 A.D.3d 608, 824 N.Y.S.2d 741;  Matter of Grisanti v. Grisanti, 4 A.D.3d 471, 474-475, 772 N.Y.S.2d 700;  Johnson v. Johnson, 303 A.D.2d 641, 642, 757 N.Y.S.2d 87).