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Description:

Buffalo, New York divorce lawyers represented the parties in a custody dispute.

The parties separated when the child was one year old, at which time the mother moved from the parties’ shared residence in the Buffalo area to the Syracuse area. The parties have shared joint custody of the child, with neither party designated as the primary residential parent, since that separation. The settlement agreement provided that this custody arrangement would continue until the child became old enough to attend grammar school, at which point the parties would attempt to reach agreement as to the parent with whom the child would primarily reside for the purpose of attending school. In the event the parties could not agree, the settlement agreement provided that the parties would seek judicial intervention without the necessity of showing a change in circumstances.

[1–3] In making a custody determination, " ‘the court must consider all factors that could impact the best interests of the child, including the existing custody arrangement, the current home environment, the financial status of the parties, the ability of [the parties] to proride for the child’s emotional and intellectual development and the wishes of the child … No one factor is determinative because the court must review the totality of the circumstances’ " ( Sheridan v. Sheridan, 129 A.D.3d 1567 1568, 12 N.Y.S.3d 434 [4th Dept. 2015]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]). A court’s evaluation of a child’s best interests is entitled to great deference and will not be disturbed as long as it is supported by a sound and substantial basis in the record (see Sheridan, 129 A.D.3d at 1568, 12 N.Y.S.3d 434; Matter of Thillman v. Mayer, 85 A.D.3d 1624 1625, 926 N.Y.S.2d 779 [4th Dept. 2011]).

Kaleta v. Kaleta, 208 N.Y.S.3d 426, 225 A.D.3d 1293 (N.Y. App. Div. 2024)

Outcome:
Upon our review of the record, we conclude that the court’s determination to award primary physical custody to the father lacks an evidentiary basis in the record (cf. Matter of DeVore v. O’Harra-Gardner, 177 A.D.3d 1264 1266, 112 N.Y.S.3d 380 [4th Dept. 2019]). The evidence presented at the hearing established that the mother’s weekday and daytime work schedule more closely aligns with the child’s school schedule. Although the mother’s work day will start earlier than the child’s school day, the mother testified to the specific arrangements that she had made to allow the child to have a consistent routine in the morning. In contrast, the father testified that his work schedule includes at least two weeknight commitments and frequent out-of-town travel on weekends during the majority of the school year. The father had no specific plan for child care during those times, but instead he speculated that the then-five-year-old child could either come with him to work, stay with relatives in the Buffalo area, or even be returned to the mother. We conclude that, despite the fitness of both parents, it is in the best interests of the child to award primary physical residence of the child to the mother. We therefore reverse the order and we remit the matter to Supreme Court to fashion an appropriate visitation schedule with the father.

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