Barkley v. Barkley

• Decision Date: 26 January 1978
• Citation: 60 A.D.2d 954,402 N.Y.S.2d 228
• Parties: In the Matter of Kevin L. BARKLEY, Respondent, v. Susan C. BARKLEY, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 228

402 N.Y.S.2d 228

60 A.D.2d 954

In the Matter of Kevin L. BARKLEY, Respondent, v. Susan C. BARKLEY, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 26, 1978.

Ernest and George Abdella, Gloversville (George Abdella, Gloversville, of counsel), for appellant.

L. Foster James, Corinth (Carroll J. Mealey, Albany, of counsel), for respondent.

Before SWEENEY, P. J., and MAHONEY, LARKIN, MIKOLL and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Saratoga County Family Court, entered December 29, 1976, which granted custody of the parties' only child to petitioner.

The facts are not in dispute. The parties were married on May 4, 1974. Their son, Kevin, Jr., was born on May 6, 1975. The family resided in a rented trailer in Cozy Hollow Trailer Park, Galway, New York. The petitioner father was employed at the General Electric Company in West Milton, New York. The mother, shortly after Kevin, Jr.'s birth, accepted employment at Nicholas Department Store in Gloversville. On July 9, 1976 she left the trailer with her son and her personal possessions and moved in with her grandmother. On July 30 the father, while exercising an agreed-upon visitation right, failed to return the boy to the mother. This factual pattern obtained during the custodial hearing before the Family Court.

At the conclusion of the custodial hearing commenced by the petitioner father by order to show cause pursuant to section 651 of the Family Court Act, the Court found that neither parent was unfit; that the 14-month-old child was content and happy with either parent; that each parent had to provide third-party baby sitters while each worked; and, "on balance", that the best interests of the infant would be served by awarding custody to the father.

The appellant mother argues that when all other considerations, "on balance", are not determinative, the Court should award custody of a child of tender years to the mother. The law establishes that parents are joint custodians and guardians of their children (Domestic Relations Law, §§ 70, 240) and neither parent has a prima facie right to custody. In fact, there is no presumption in favor of awarding custody of young children to their mother (Matter of Vincent v. Vincent, 47 A.D.2d 786, 365 N.Y.S.2d 289). The best interest of the child is the court's primary concern (Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659), and that concern is best satisfied by a studied, thoughtful review of the hearing record by the trial court that leads to a determination based on sound discretion which, in turn, rests on a substantial evidentiary basis (Matter of Darlene T., 28 N.Y.2d 391, 395, 322 N.Y.S.2d 231, 233, 271 N.E.2d 215, 217; Matter of Kevin M. JJ v. Alice A. JJ, 50 A.D.2d 959, 960, 376 N.Y.S.2d 649, 650). Since there is no claim or proof that the petitioner father is unfit or is likely to become so, and, further, since the infant is happy and content in his present surroundings, we find no reason to order a different custodial arrangement. The child's welfare demands that a shifting of custody be avoided (Selbert v. Selbert, App.Div., 400 N.Y.S.2d 586 (1977); Matter of Lang v. Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763, affd. 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861). We conclude there was a sound and substantial basis for the determination of the Family Court.

Order affirmed, without costs.

SWEENEY, J. P., and MAHONEY, LARKIN and MIKOLL, JJ., concur.

HERLIHY, J., dissents and votes to reverse in the following memorandum.

HERLIHY, Justice (dissenting).

The majority recite that the primary concern of the Family Court is the best interest of the child "and that concern is best satisfied by a studied, thoughtful review of the hearing record by the trial court that leads to a determination based on sound discretion which, in turn, rests on a substantial evidentiary basis". The supposed fulfillment of that test as affirmed by the majority herein is the finding of the Family Court:

While both parents would be able to raise the child in proper fashion, on balance custody of the child with the father would serve the best interests of the child.

The Family Court made no finding as to what fact or facts would favor the father as opposed to its expressed finding that both parents were equally fit.

The majority herein seem to make a new finding that the interests of the child showed that a "shift" of custody from the father to the mother would somehow be detrimental. There is no such proof in this record and the father's custody cannot be weighed in his favor.

The record reveals that following the parents' separation, the father agreed that this 14-month-old infant should be in the custody of the mother with the father having visitation rights. Shortly after such agreement, the father while purportedly exercising his visitation rights simply "snatched" the child. The custody herein by the father was not in violation of a court order (see Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4 (1977) affg. sub nom. Matter of Susanne U. "NN" v. Rudolf "OO", 57...