Dylong v. Dylong

92 A.D.2d 698, 460 N.Y.S.2d 400, 1983 N.Y. App. Div. LEXIS 16978

Opinion

— Appeal from so much of an order of the Family Court of Montgomery County (Catena, J.), entered April 14, 1982, as denied a petition for change of custody. On December 20, 1979, the parties, after 21 years of marriage, were divorced. During their marriage, the parties had four children. The issue concerning custody of the children was referred by Supreme Court to Family Court. The resulting custody proceeding concerned only the parties’ son, Jamie, as the other children had attained the age of majority. After conducting a hearing, Family Court rendered a decision on August 1, 1980, awarding custody of Jamie to respondent father and visitation rights to petitioner mother. By petition dated December 15, 1981, petitioner commenced the instant proceeding, seeking a change in custody. After conducting a hearing, Family Court, inter alla, denied the petition and this appeal ensued. It is well established that “[p]aramount in child custody cases * * * is the ultimate best interest of the child” (Matter ofNehra v Uhlar, 43 NY2d 242, 248). It is also established that “[pjriority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation” (id., at p 251). In this regard, Friederwitzer v Friederwitzer (55 NY2d 89) instructs us that “ ‘absence of extraordinary circumstances’ is to be read as ‘absence of countervailing circumstances on consideration of the totality of circumstances’ ” (id., at p 95). The record, read in light of the above standard, supports Family Court’s determination that a change in custody was not warranted. Accordingly, Family Court’s order should be affirmed. Order affirmed, without costs. Kane, J. P., Mikoll, Yesawich, Jr., Weiss and Levine, JJ., concur.