IN RE: Gregory Gorniok (2011)

Argued-January 31, 2011

DECISION & ORDER

In a child custody and visitation proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Snellenburg II, J.), dated January 13, 2010, as, after a hearing, (a) denied his petition to modify a prior custody order of the same court dated December 14, 2007, awarding the parties joint legal custody of their child with physical custody to the mother and visitation every weekend to the father, so as to award him sole custody of the child, (b) granted the mother's petitions to modify the prior custody order so as to award her sole custody of the child and to reduce his visitation from every weekend and every Wednesday to alternate weekends and every Wednesday, and (c), in effect, dismissed his petition to adjudicate the mother in contempt for violating the order dated December 14, 2007.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

“Since the Family Court's custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents, its determination should not be disturbed unless it lacks a sound and substantial basis in the record” (Matter of Tavarez v. Musse, 31 AD3d 458, 458 [internal quotation marks omitted];  see Matter of Battista v. Fasano, 41 AD3d 712, 713;  Matter of Johnson v. Johnson, 309 A.D.2d 750, 751).

“[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion” (Braiman v. Braiman, 44 N.Y.2d 584, 589-590;  see Bliss v. Ach, 56 N.Y.2d 995, 998;  Matter of Edwards v. Rothschild, 60 AD3d 675, 676-677).   “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 Edwards v. Rothschild, 60 AD3d at 677, quoting Matter of Timothy M. v. Laura A.K., 204 A.D.2d 325, 326;  see Bliss v. Ach, 56 N.Y.2d at 998;  Matter of McCoy v. McCoy, 43 AD3d 469;  Matter of Tavarez v. Musse, 31 AD3d at 458;  Matter of Burnholdt v. Alfieri, 201 A.D.2d 560).   Since the record here is “replete with examples of hostility and antagonism between the parties, indicating that they were unable to put aside their differences for the good of the child” (Matter of Timothy M. v. Laura A.K., 204 A.D.2d at 326;  see Matter of Janecka v. Franklin, 143 A.D.2d 731, 732), there is a sound and substantial basis for the Family Court's determination that joint custody was no longer appropriate (see Matter of Battista v. Fasano, 41 AD3d at 713;  Matter of Tavarez v. Musse, 31 AD3d 458;  Matter of Johnson v. Johnson, 309 A.D.2d at 751).

Likewise, the record supports the determination that sole legal and physical custody should be with the mother, not the father.   The mother had primary physical custody of the child since the child's birth, and by the parties' agreement.   The parties' own agreement as to who should have custody constitutes a weighty factor to which priority should be accorded absent extraordinary circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171;  Matter of Neu v. Neu, 303 A.D.2d 509, 510;  Alanna M. v. Duncan M., 204 A.D.2d 409).   Since the record supports the Family Court's determination to disregard the testimony of the babysitter on the ground that she lacked credibility, the father has failed to show circumstances warranting a disruption of “the stability and continuity of the present situation” (Matter of Bryant v. Nazario, 306 A.D.2d 529, 529;  see Matter of Chase v. Matanda-Chase, 41 AD3d 475, 476;  Matter of Rodriguez v. Irizarry, 29 AD3d 704) as to physical custody.

The record also supports the Family Court's determination to reduce the father's visitation from every weekend and every Wednesday to alternate weekends and every Wednesday to allow the child to spend recreation time with her mother and brother and to participate in events with the mother's family.

The father is correct that the Family Court improvidently exercised its discretion in permitting the introduction of extrinsic evidence to contradict the babysitter's testimony regarding matters that “had no direct bearing on any issue in the case other than credibility” (Badr v. Hogan, 75 N.Y.2d 629, 635;  see People v. Pavao, 59 N.Y.2d 282, 289 People v. Griffin, 194 A.D.2d 738, 739).   However, the error was harmless, as “[t]here is a sound and substantial basis in the record for the Family Court's determination without consideration of the improperly admitted [evidence]” (Matter of Tercjak v. Tercjak, 49 AD3d 772, 773;  see Matter of Mingo v. Belgrave, 69 AD3d 859, 860;  Matter of Taylor v. Taylor, 62 AD3d 1015, 1016).

COVELLO, J.P., CHAMBERS, LOTT and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court