Alanna M. v. Duncan M.

204 A.D.2d 409, 611 N.Y.S.2d 886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 1994
• Status: Published

Opinions

—In a matrimonial action in which the parties were divorced by judgment dated July 2, 1992, the plaintiff mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), dated August 4, 1993, as, after a hearing, granted sole custody of the parties’ two children to the defendant father.

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

In July of 1990, the parties entered into a separation agreement which provided for joint custody of their two children, with physical custody to the defendant father. In September of 1991, the plaintiff commenced this matrimonial action, although she did not seek custody of the children in her complaint. The defendant counterclaimed for sole custody of the children. The plaintiff then filed a reply in which she also sought sole custody of the children. After a hearing, the court issued a decision in which it found that both parents were fit, but concluded that the best interests of the children would be served by awarding custody to the defendant. The court stated that it had reached its determination after "intense scrutiny” of the parties and their respective witnesses over the course of the five-day hearing. We affirm.

The paramount consideration in making any award of custody is, of course, the best interests of the children involved (see, Friederwitzer v Friederwitzer, 55 NY2d 89; Matter of Sullivan v Sullivan, 190 AD2d 852; Matter of Ellen K. v John K., 186 AD2d 656). Since any custody determination depends to a very great extent upon the hearing court’s assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties (see, Matter of Irene O., 38 NY2d 776; Matter of Sullivan v Sullivan, supra), its findings "are generally accorded great respect * * * and will not be disturbed unless they lack a sound and substantial basis in the record” (Kuncman v Kuncman, 188 AD2d 517, 518).

While no agreement can bind the court to a particular disposition, the parties’ own agreement as to who should have custody constitutes a "weighty factor”, to which priority should be accorded absent extraordinary circumstances (Eschbach v Eschbach, 56 NY2d 167, 171; see also, Matter of Nehra v Uhlar, 43 NY2d 242, 251). Notably, "[t]his priority is afforded the first determination of custody in the belief [that] the stability this policy will assure in the child’s life is in the child’s best interests” (Eschbach v Eschbach, supra, at 171).

Here, after observing the parties and their witnesses’ testify, and carefully reviewing all the relevant evidence, the court concluded that the children’s interests would best be served by granting sole custody to the defendant, with whom the children had been residing for over 2 Vi years at the time the hearing was conducted, pursuant to an agreement executed by the parties themselves (see, Matter of Krebsbach v Gallagher, 181 AD2d 363; Robert C. R. v Victoria R., 143 AD2d 262). It is true that the court chose to reject the recommendations of the court-appointed psychiatrist, Dr. Herbert Lessow, and the Law Guardian. However, the fact that an expert has been appointed does not require that the court accept the opinion of that expert (see, State of New York ex rel. H.K. v M.S., 187 AD2d 50, 53). We note that neither Dr. Lessow nor the Law Guardian concluded that the defendant was materially less fit as a parent; indeed, Dr. Lessow described the question of who should be awarded custody a relatively even call and characterized both parents as "highly devoted” parents. As the trier of fact reviewing the entire record, the court was free to reject Dr. Lessow’s custody recommendation and credit the evidence favoring the defendant’s retention of custody, including, among other things, the parties’ pre-existing agreement with respect to custody, the defendant’s prior role as successful custodian of the children, his motivation and desire to continue in that role, his ability to be with the children on a full-time basis due to his retirement on a disability pension, and his stable home environment.

Contrary to the dissenter’s suggestions, Dr. Lessow’s written report contains no conclusion or finding that the defendant was abusive, meted out excessive corporal punishment, or engaged in any improper physical conduct with regard to the parties’ son Michael. Nor is there anything in Dr. Lessow’s report which establishes that the defendant’s parenting style was responsible for Michael’s sensitive personality—which Dr. Lessow described, inter alia, as a "possibly congenital personality structure”. Rather, Dr. Lessow’s written custody recommendation was largely premised upon his perception that the defendant’s more direct, "no-nonsense” style of parenting might be less compatible with the sensitive nature of Michael’s personality. However, in light of Dr. Lessow’s own description of the parties’ relationship as "dysfunctional”, and his conclusion that the parties’ acrimonious relationship has impacted negatively upon Michael, the court could reasonably have concluded, as it did, that Michael’s problems were "a natural response to the divorce of his parents”.

Although the dissent takes issue with the court’s finding that the plaintiff acted in bad faith when she filed child abuse charges against the defendant based on his alleged pulling of Michael’s hair, the fact remains that the Child Protective Services Agency investigated the plaintiff’s complaint of "excessive corporal punishment” at length and found it to be unfounded. We note in this respect that the alleged incidents mentioned in the plaintiff’s complaint apparently occurred when the parties were living together prior to April 1990 but were not reported by the plaintiff until June of 1991, after she had left the children in the defendant’s custody, and shortly before she commenced the instant action. Further, it appears that the plaintiff and her boyfriend, with whom she was living, both filed child abuse complaints against their respective spouses at approximately the same time, i.e., in mid-1991. Additionally, while the dissent recites the mother’s claim that she had been subjected to "years of physical and psychological abuse”, there was no such finding made by any of the examining experts in their written reports, nor was any such alleged conduct mentioned in their written assessments bearing upon the issue of custody. We note in this regard that despite the plaintiff’s allegations with respect to the defendant’s conduct, she nevertheless voluntarily consented to his retention of physical custody when she left the marital home and later, did not include in her complaint a cause of action for divorce based on the grounds of cruel and inhuman treatment.

In short, there is nothing in the record which establishes that the defendant is unfit to assume the role as sole custodial parent.

Accordingly, and upon our review of the entire record, we cannot say that the court’s decision to award the defendant sole custody constituted an improvident exercise of discretion. Thompson, J. P., Rosenblatt and Ritter, JJ., concur.