SEYMOUR v. SEYMOUR

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Patricia SEYMOUR, Petitioner-Appellant, v. Rickie J. SEYMOUR, Respondent-Respondent.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., PINE, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Dennis A. Germain, Watertown, for petitioner-appellant. Lisa Weldon, Watertown, for respondent-respondent.

 Family Court properly determined, pursuant to the factors set forth in Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863, that it was in the child's best interests to award the parties joint custody with primary physical placement with respondent, despite the fact that the child would thereby be separated from her half-sister (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   The court expressed concern about petitioner's drinking habits.   In addition, the court noted that the child had always resided in the marital home where respondent would continue to reside, and would be required to relocate to another town if placed with petitioner.   The court further noted that the child had a close relationship with paternal relatives who lived nearby.   There is no basis to conclude that the court's determination “lacks a sound and substantial basis in the record” (White v. White, 209 A.D.2d 949, 950, 619 N.Y.S.2d 428, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 324, 650 N.E.2d 1326;  see, Matter of King v. King, 251 A.D.2d 1028, 1029, 674 N.Y.S.2d 195).

 Part of the Law Guardian's role is to help children express their wishes to the court (see, Family Ct. Act § 241);  however, because the child was only four years old the court improperly considered the child's wishes (see, Matter of Jensen v. Harris, 197 A.D.2d 917, 918, 604 N.Y.S.2d 842).   Nevertheless, we conclude that the error is harmless because the record otherwise supports the courts' determination.   Finally, the length of closing arguments is a matter resting within the sole discretion of the trial court (see generally, Family Ct. Act § 165[a];  CPLR 4011), and the court did not abuse its discretion in limiting the summation of each party to five minutes.

Order unanimously affirmed without costs.

MEMORANDUM: