Blake v. Blake

• Decision Date: 14 December 1984
• Citation: 106 A.D.2d 916,483 N.Y.S.2d 879
• Parties: In the Matter of Elizabeth M. BLAKE, Appellant, v. Edward J. BLAKE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 879

483 N.Y.S.2d 879

106 A.D.2d 916

In the Matter of Elizabeth M. BLAKE, Appellant, v. Edward J. BLAKE, Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 14, 1984.

Neighborhood Legal Services, Inc., Buffalo, and National Center on Women and Family Law, New York City, by Barbara Kavanaugh, Buffalo, for appellant.

Richard V. Hunt, Watertown, for respondent.

Before CALLAHAN, J.P., and DOERR, BOOMER, GREEN and SCHNEPP, JJ.

MEMORANDUM:

It was an abuse of discretion for the court to award the parties joint custody of their children with physical custody to the father. The record indicates that the award of physical custody to the father was made because the court concluded that the mother did not have proper facilities where she could raise the children, observing that the home for battered wives where the mother had taken refuge was inadequate for such purpose. Apparently overlooked by the court was testimony from petitioner and her mother that the latter had ample space in her home where petitioner and the children could stay.

The parties here have demonstrated great antagonism toward each other. For that reason alone, joint custody of the children is inappropriate (Braiman v. Braiman, 44 N.Y.2d 584, 589-590, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Matter of Sooy v. Sooy, 101 A.D.2d 287, 289, 475 N.Y.S.2d 920).

In a custody proceeding, neither party has a prima facie right to custody and any determination of custody shall be in the best interest of the child (Domestic Relations Law, § 240; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 93, 447 N.Y.S.2d 893, 432 N.E.2d 765; Martin v. Martin, 74 A.D.2d 419, 425, 427 N.Y.S.2d 1002). In determining custody, many factors must be considered including the quality of the home environment and the parental guidance the custodial parent provides for the child (Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260); the ability of each parent to provide for the child's emotional and intellectual development (Porges v. Porges, 63 A.D.2d 712, 713, 405 N.Y.S.2d 115); the financial status and ability of each parent to provide for the child (Eschbach v. Eschbach, supra, 56 N.Y.2d 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260); the relative fitness of the respective parents as well as the length of time the present custody has continued (Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 250-251, 401 N.Y.S.2d 168, 372 N.E.2d 4); and although not determinative, the desires of each child (Eschbach v. Eschbach, supra, 56 N.Y.2d p. 173, 451 N.Y.S.2d 658, 436 N.E.2d...