Goho v. Goho

Order unanimously affirmed, without costs. Memorandum: [1046] Petitioner husband appeals from a Family Court order which denied his application to obtain custody of his infant daughter, now six years of age, and awarded joint custody to petitioner and respondent, his former wife. Pursuant to the order, respondent is to have custody of the child during the school year and petitioner is to have custody during the summer recess. The order modifies the October, 1973 divorce decree of the parties which, in accordance with their stipulation, awarded custody to the respondent. It is well established that the overriding concern in a custody dispute between natural parents is the best interests of the child (Domestic Relations Law, § 70), and where the parties have agreed, as they have here, that one is to have custody, that agreement may not be disregarded absent a finding that the custodial parent is unfit or at least less fit than the other parent (Papernik v Papernik, 55 AD2d 846). Following a full hearing, the court found that although respondent had failed properly to safeguard her daughter’s welfare, the circumstances and conduct of the respondent which supported this finding had ceased to exist about six months before the hearing. It was determined that respondent had since provided a suitable home for the child and the evidence adequately justifies the conclusion that she was in a position to do so in the future (see Papernik v Papernik, supra). Moreover, in consideration of the judicial reluctance to transfer custody of young children who have been with their mother since birth (Aberbach v Aberbach, 33 NY2d 592), the absence of proof that it will be harmful for the child to remain in her mother’s custody (see Mantell v Mantell, 45 AD2d 918) and the deference which is to be accorded the trial court (Matter of Ebert v Ebert, 38 NY2d 700), we are of the opinion that respondent should not be deprived of her daughter’s custody. Finally, we find no abuse of the trial court’s discretion in its award of joint custody. (Appeal from order of Livingston Family Court—custody.) Present—Marsh, P. J., Moule, Cardamone, Simons and Dillon, JJ.