Fountain v. Fountain

Appellate Division of the Supreme Court of New York

Fountain v. Fountain

83 A.D.2d 694, 442 N.Y.S.2d 604, 1981 N.Y. App. Div. LEXIS 15007

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 16, 1981

StatusPublished

Cited by10 cases

This text of 83 A.D.2d 694 (Fountain v. Fountain) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fountain v. Fountain, 83 A.D.2d 694, 442 N.Y.S.2d 604, 1981 N.Y. App. Div. LEXIS 15007 (N.Y. Ct. App. 1981).

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Opinions

Appeal from an order of the Family Court of Franklin County (Plumadore, J.), entered January 28, 1980, which awarded custody of the parties’ infant children to petitioner. The order of the Family Court should be affirmed. That court found that it would be counter to the best interests of the children to uproot the “stable custody” of the father, particularly in view of the good care they were receiving in his household, and awarded custody of the two children of the marriage, Jeffrey, age 7, and Carrissa May, age 4, to him. The record supports the findings of the Family Court. There is no prima facie right to custody of the children in either parent (Domestic Relations Law, § 70). A presumption of “maternal superiority” is now considered to be outdated (Andrews v Andrews, 74 AD2d 546). Where two or more siblings are involved, there is a strong policy of keeping them together to promote “familial bonds” (Obey v Degling, 37 NY2d 768, 771). And, in situations where a child has been living with one parent for an extended period of time, there is usually a policy against shifting custody to the other parent (Aberbach v Aberbach, 33 NY2d 592; see Matter of Miller v Miller, 74 AD2d 663, 664). Moreover, custody should only be changed if the advantages of the change greatly outweigh the advantages of continuity and stability (Matter of Bennett v Jeffreys, 40 NY2d 543, 550). Family Court determined that both parties are “fit” parents, capable of providing suitable homes for the children, and went on to make its determination based on a consideration of the foregoing principles. That decision should not be disturbed on this record. We find no error in Family Court’s failure to award visitation rights to the noncustodial parent since no request therefor was made in the proceedings below. If the parents have not or cannot arrive at a mutually agreeable visitation schedule, respondent is free to petition Family Court for an order granting visitation. Order affirmed, without costs. Kane, [695]*695J. P., Main, Mikoll and Yesawich, Jr., JJ., concur; Herlihy, J., dissents and votes to reverse in the following memorandum.

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Appeal from an order of the Family Court of Franklin County (Plumadore, J.), entered January 28, 1980, which awarded custody of the parties’ infant children to petitioner. The order of the Family Court should be affirmed. That court found that it would be counter to the best interests of the children to uproot the “stable custody” of the father, particularly in view of the good care they were receiving in his household, and awarded custody of the two children of the marriage, Jeffrey, age 7, and Carrissa May, age 4, to him. The record supports the findings of the Family Court. There is no prima facie right to custody of the children in either parent (Domestic Relations Law, § 70). A presumption of “maternal superiority” is now considered to be outdated (Andrews v Andrews, 74 AD2d 546). Where two or more siblings are involved, there is a strong policy of keeping them together to promote “familial bonds” (Obey v Degling, 37 NY2d 768, 771). And, in situations where a child has been living with one parent for an extended period of time, there is usually a policy against shifting custody to the other parent (Aberbach v Aberbach, 33 NY2d 592; see Matter of Miller v Miller, 74 AD2d 663, 664). Moreover, custody should only be changed if the advantages of the change greatly outweigh the advantages of continuity and stability (Matter of Bennett v Jeffreys, 40 NY2d 543, 550). Family Court determined that both parties are “fit” parents, capable of providing suitable homes for the children, and went on to make its determination based on a consideration of the foregoing principles. That decision should not be disturbed on this record. We find no error in Family Court’s failure to award visitation rights to the noncustodial parent since no request therefor was made in the proceedings below. If the parents have not or cannot arrive at a mutually agreeable visitation schedule, respondent is free to petition Family Court for an order granting visitation. Order affirmed, without costs. Kane, [695]*695J. P., Main, Mikoll and Yesawich, Jr., JJ., concur; Herlihy, J., dissents and votes to reverse in the following memorandum.

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83 A.D.2d 694, 442 N.Y.S.2d 604, 1981 N.Y. App. Div. LEXIS 15007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fountain-v-fountain-nyappdiv-1981.

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