Eliminating Joint Residential Custody Arrangement Not in Children’s Best Interests
Matter of Nell v Nell
2011 NY Slip Op 06129
Decided on August 2, 2011
Appellate Division, Second Department
The family court modified the joint custody arrangement the parties established by stipulation that had been incorporated into the parties’ judgment of divorce. The family court awarded sole legal and residential custody of the children to mother, and awarded visitation to father that restricted weekday overnight visits.
The Second Department reversed. Modification is only warranted where there has been a change in circumstances such that modification is needed in the best interests of the child, as determined by reviewing the totality of the circumstances. Since the determination depends on evaluating witness credibility, the hearing court’s findings are accorded great deference and only disturbed where they lack a sound and substantial basis in the record.
Here, the finding of a change of circumstances was supported by the record because acrimony between the parties made joint decision making impossible. However, the lower court erred in awarding mother sole residential custody and accordingly discontinuing father’s overnight weekday visitation. The children expressed a desire to maintain the status quo with regard to the schedule, and their preference was entitled to some weight given that they were 12 and 14, and sufficiently mature enough to express their desires. Furthermore, altering the schedule would cause more disruption int he children’s lives, and there was no evidence the children would benefit from spending less time with father. Therefore the best interests of the children required continuing the joint residential custody arrangement and the weekday overnight visitation schedule as originally agreed.