Gunderud v. Gunderud

Appeal from an order of the Family Court of Ulster County, entered August 11, 1978, which awarded custody of the parties’ three minor children to respondent. The parties have three children and petitioner moved to Texas with the youngest, a daughter then four years of age, shortly after she commenced a divorce action against respondent in June of 1977. The older children, a son born in September of 1963 and a daughter born in June of 1966, continued to live with their father in Saugerties, New York. A judgment of divorce based on respondent’s counterclaim was granted in February of 1978 and the issue of custody was referred to Family Court (Family Ct Act, § 652). Following hearings on the question, at which the parties and the older children testified, custody of all three was awarded to respondent and this appeal by petitioner ensued. We conclude that the order of Family Court should be affirmed. Unlike the situation presented in People ex rel. Selbert v Selbert (60 AD2d 692), the parties here had not reached any agreement or understanding concerning the custody of their children. Family Court was faced with the task of determining their best long-term interest in the absence of any established parental arrangement or prior judicial decision on the subject. Its decision reflects that careful attention was paid to all relevant factors and we cannot say that discretion was abused in awarding custody to respondent. We note that neither parent was found to be unfit or, for that matter, more fit to provide for the children. The lifestyle of the younger daughter was not examined and the older siblings expressed a preference to remain with their father. With the choice so evenly balanced, Family Court accorded that consideration the weight it was due and properly took into account the familial stability and companionship that would be advanced by keeping the children together (cf. Matter of Ebert v Ebert, 38 NY2d 700; Obey v Degling, 37 NY2d 768). Order affirmed, without costs. Mahoney, P. J., Greenblott, Sweeney, Kane and Staley, Jr., JJ., concur. 693 advanced by the State concerning rulings on evidentiary matters and the amount of the award to be without merit. Judgment affirmed, with one bill of costs to claimant Delilah Plumadore. Greenblott, J. P., Sweeney, Kane, Staley, Jr., and Casey, JJ., concur.