Bilodeau v. Bilodeau

• Decision Date: 17 May 1990
• Parties: In the Matter of Michael BILODEAU, Appellant, v. Laurie A. BILODEAU, Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

Page 471

557 N.Y.S.2d 471

161 A.D.2d 906

In the Matter of Michael BILODEAU, Appellant, v. Laurie A. BILODEAU, Respondent.

(And Another Related Proceeding.)

Supreme Court, Appellate Division,

Third Department.

May 17, 1990.

Fitzgerald, Taylor, Pomeroy & Armstrong (Donald C. Armstrong, of counsel), Cortland, for appellant.

George Yager, Cortland, for respondent.

Before CASEY, J.P., and MIKOLL, YESAWICH, MERCURE and HARVEY, JJ.

HARVEY, Justice.

Appeal from an order of the Family Court of Cortland County (Mullen, J.), entered June 28, 1989, which, in proceedings pursuant to Family Court Act article 6, awarded custody of Michael Bilodeau and Matthew Bilodeau to petitioner and custody of Brandi Bilodeau to respondent.

The parties were married in August 1980 and have three children; Michael, born May 1, 1981, Matthew, born March 26, 1984, and Brandi, born May 5, 1987. Marital disharmony ultimately resulted in respondent leaving or being asked to leave the marital residence in August 1988. Petitioner immediately petitioned Family Court for custody of the children and respondent then cross-petitioned the court for the same relief. A temporary custody/placement order of the court granted joint custody of the children to the parties with temporary physical placement granted to petitioner. Liberal visitation was granted respondent.

A full fact-finding hearing was then held. Both parties detailed their strong attachment to the children and described their living arrangements. Petitioner lived in a three-bedroom house. His mother moved in with him to help with the caring for the children and housekeeping. Respondent purchased a three-bedroom trailer 1 1/2 miles from petitioner's home. Also testifying at the hearing were petitioner's mother and respondent's father, the eldest child's first-grade teacher, the children's tutorial outreach tutor and the children's former babysitter. Following submission of all testimony, Family Court continued joint custody but granted permanent physical custody of Michael and Matthew to petitioner and permanent physical custody of Brandi to respondent. Petitioner thereafter filed an appeal and this court stayed Family Court's order pending the outcome of this appeal.

Initially, petitioner argues that it was against Brandi's best interest for Family Court to separate her from her siblings. In general, the courts of this State discourage the separation of siblings (see, Matter of Setlur v. Setlur, 135 A.D.2d 873, 522 N.Y.S.2d 268; see also, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 382 N.Y.S.2d 472, 346 N.E.2d 240). Accordingly, a split custody decree is only proper when "the best interests of each child lies with a different parent" (Wurm v. Wurm, 87 A.D.2d 590, 591, 447 N.Y.S.2d 758, appeal dismissed 56 N.Y.2d 886, 453 N.Y.S.2d 429, 438 N.E.2d 1145). After a careful review of the record in this case, we find insufficient grounds to disturb Family Court's exercise of discretion in this very difficult case.

Specifically, we note that although the parties' testimony contains the self-serving and conflicting testimony and accusations that unfortunately are typical in these cases (see, Matter of Estes v. Estes, 112 A.D.2d 568, 490 N.Y.S.2d 939), the record supports Family Court's finding that the parties are both fit and loving parents who are loved by their children in return. However, with respect to the parties' oldest son, classified at the hearing as learning disabled, the court noted petitioner's close and active involvement in his son's...