Erck v. Erck

147 A.D.2d 921, 537 N.Y.S.2d 367, 1989 N.Y. App. Div. LEXIS 1192

Opinion

— Order reversed on the law and facts without costs and custody granted to petitioner. Memorandum: While mindful of the fact that the trial court’s determination of custody is entitled to great weight, we believe that the court, in examining the circumstances which would comport with the best interests of the children (see, Eschbach v Eschbach, 56 NY2d 167, 171; Friederwitzer v Friederwitzer, 55 NY2d 89, 95), was heavily influenced by the fact that awarding custody to the father would provide the three girls who are 10, 7 and 5 years of age with greater stability because they would remain in their home, remain in the same school district and have the same friends. That overlooks the fact that the mother, if awarded custody, indicated her willingness to live in the same neighborhood, although obviously in a different house. It also seems to us to ignore the opinion of the psychiatrist that the father, although clearly a loving and excellent parent, has no insight into the emotional loss suffered by the children as a result of being separated from their mother and that his bitterness toward her prevents him from validating her maternal role in their eyes. In contrast, it appears that the mother, who had been their primary caretaker, is willing and able to insure the girls’ continuing relationship with their father as necessary to their emotional well-being. Because we believe that the evidence supports the view that the mother will foster a positive image of both parents (see, Bliss v Ach, 56 NY2d 995, 998; Gugino-Toufexis v Toufexis, 132 AD2d 995, 996), and provide a nurturing influence for these three children, we find that the best interests of the children will be served by awarding custody to the mother.

All concur, except Callahan, J. P., who dissents and votes to affirm. (Appeal from order of Niagara County Family Court, Halpin, J. — custody.) Present — Callahan, J. P., Denman, Green, Balio and Davis, JJ.