Synakowski v. Synakowski

Yesawich Jr., J. Appeal from an order of the Supreme Court (White, J.), entered May 3, 1991 in Fulton County, which, inter alia, granted custody of the parties’ children to plaintiff. The parties, married in 1982, have two daughters. In August 1989 plaintiff commenced the underlying divorce action. When court-ordered joint temporary custody of the children proved unworkable, plaintiff was awarded sole custody on a temporary basis. Thereafter, following a plenary hearing, Supreme Court determined that it would be in the children’s best interest for plaintiff to retain sole custody, with defendant having extensive visitation privileges. Defendant appeals. To arrive at a custody determination that is in the child’s best interest (see, Domestic Relations Law § 70; Matter of Dinino v Deima, 173 AD2d 1017, 1018), many factors must be weighed, including the ability of the parent to meet the child’s needs, the type of home environment provided, stability of that environment, relative fitness of the parents, and the child’s wishes. Because these individual aspects interact to create a complex picture of each parent’s living situation and the quality of care that they will provide, no single factor is dispositive. Further, the determination of the trial court, which possesses the ability to directly observe and evaluate the sincerity of the parties, should, if it has a substantial basis in the record, be accorded great respect (see, Eschbach v Eschbach, 56 NY2d 167, 173; Matter of Schwartz v Schwartz, 144 AD2d 857, 859, lv denied 74 NY2d 604). Here, Supreme Court found both parents loving and fit; however, joint custody, the solution preferred by all of the experts involved, was perceived to be unworkable because of the acrimony between the parties. In granting custody to plaintiff, the court noted that he had developed a closer association with the children and that continuing such custody would minimize disruption in the children’s lives; these findings are amply supported in the record. Plaintiff is currently residing in the former marital home, and placing custody with him allows the children, who at the time of the hearing were five and seven years old, to remain in the same school where they are doing exceedingly well and have developed many friendships. Moreover, all the witnesses attested to the high level of interaction and concern plaintiff exhibited for the children. Being a schoolteacher, he has more time in the afternoons and in the summer to spend with them, [837] another factor which weighs heavily in his favor (see, Matter of Clary v Bond, 186 AD2d 869, 870; Matter of Schwartz v Schwartz, supra, at 860). Not unimportantly, both the Law Guardian and the probation officer (who conducted the home study evaluation) urged that the children be placed with plaintiff in the event that joint custody was rejected. The only element in defendant’s favor was reflected in the testimony of a psychologist, Dario Stucci, who evaluated the parents at the request of Supreme Court. As a result of tests administered to the parties, Stucci concluded that defendant manifested no potential psychological problems and found her to be more stable, mature and "socially connected” than plaintiff. Stucci’s analysis of plaintiff’s test results, on the other hand, led him to believe that plaintiff was somewhat overinvolved with and dependent upon his daughters for emotional fulfillment, that he was depressed and anxious, and that he has a controlling and rigid nature which, Stucci opined, might stifle the children’s psychological development. It is telling in this regard, however, that even Stucci recommended joint custody as his first choice; he commented that plaintiff was "a very dedicated father”, "very knowledgeable in child rearing”, had "compassion and concern for his children”, displayed "very good” parenting skills, that he was not "abnormal” and that his problems would not affect his ability to care for the children. Furthermore, both children were examined and found to be healthy and well adjusted, despite having been primarily in plaintiff’s care for their entire lives. If joint custody was unworkable, only then did Stucci advocate placing the children with defendant; it is worth noting in this regard that this recommendation was based, to some degree, on Stucci’s view that all else being equal, young children should be placed with the same-sex parent. While the mental health or stability of a parent is a factor with which the court must obviously concern itself in a custody dispute, it need not necessarily be controlling (see, Rosenblitt v Rosenblitt, 107 AD2d 292, 294). The fact that the custody arrangement decreed is contingent upon plaintiff continuing to attend counseling confirms that Supreme Court did indeed consider this factor in arriving at its disposition (see, Matter of Eastman v Drennen, 122 AD2d 397, 399). Given all of the circumstances, including the extensive testimony from lay witnesses regarding plaintiff’s involvement in his children’s upbringing from the time they were born and his willingness to encourage and assist their growth and learning, and the recommendations of the probation officer [838] and the Law Guardian, we find that the custody award has a sound and substantial basis in the record and should not be disturbed. Mercure, Crew III and Casey, JJ., concur.