Garvin v. Garvin

• Decision Date: 30 September 1991
• Citation: 574 N.Y.S.2d 760,176 A.D.2d 318
• Parties: In the Matter of Jeffrey R. GARVIN, Appellant, v. Rose M. GARVIN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 760

574 N.Y.S.2d 760

176 A.D.2d 318

In the Matter of Jeffrey R. GARVIN, Appellant, v. Rose M. GARVIN, Respondent.

Supreme Court, Appellate Division Second Department.

Sept. 30, 1991.

Jeffrey R. Garvin, pro se.

Cahn Wishod Wishod & Lamb, Melville (Scott M. Karson, of counsel), for respondent.

John F. Middlemiss, Jr., Hauppauge (Andrea S. Mackenzie, of counsel), Law Guardian on behalf of the child.

Before HARWOOD, J.P., and LAWRENCE, EIBER and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In a child custody proceeding, the father appeals, as limited by his brief, from so much of an order of the Family Court, Suffolk County (Berler, J.), entered September 14, 1990, as awarded custody of the infant child of the parties to the mother and prohibited all telephonic and verbal communications between the parties at all times, except in emergencies. This appeal brings up for review so much of an order of the same court, entered November 29, 1990, as, upon reargument, modified visitation and otherwise adhered to the original determination (CPLR 5517[b].

ORDERED that the appeal from the order entered September 14, 1990, is dismissed, as that order was superseded by the order entered November 29, 1990, made upon reargument; and it is further,

ORDERED that the order entered November 29, 1990, is affirmed insofar as reviewed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The parties were married in 1983. Their only child, Jeremy, who is the subject of this appeal, was born on August 14, 1986. The husband subsequently commenced a divorce action in December 1986 following his wife's departure from the marital home in April 1986. At issue on appeal is the propriety of an order of the Family Court, which, following a hearing, inter alia, awarded custody of Jeremy to his mother.

It is clear that between two natural parents, the preeminent concern in a custody determination is what is in the best interests of the child (see, Domestic Relations Law § 240; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Coyne v. Coyne, 150 A.D.2d 573, 575, 541 N.Y.S.2d 448; Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449, 538 N.Y.S.2d 605; Alan G. v. Joan G., 104 A.D.2d 147, 482 N.Y.S.2d 272; Aldous v. Aldous, 99 A.D.2d 197, 199, 473 N.Y.S.2d 60; cert. denied 469 U.S. 1109, 105 S.Ct. 786, 83 L.Ed.2d 780). Courts making custody determinations must weigh several factors of varying degrees of importance, including the relative fitness of the parents, the original placement of the child and the length of that placement, abduction, or defiance of legal process, the quality of the home environment, the existence of siblings, the parents' financial status, parental guidance and their ability to provide for the child's emotional and intellectual functioning, the child's desires, and religion (see, Eschbach v. Eschbach, supra, 56 N.Y.2d at 172, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, supra, 55 N.Y.2d at 94, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Robert T.F v. Rosemary F., supra ). In reviewing an award of custody, an appellate court must be mindful that a custody determination is a matter entrusted to the discretion of the trial court, and its decision is entitled to great deference, particularly because any determination turns in large part upon the trial court's observation of demeanor and assessment of the credibility, character, temperament and sincerity of the parties involved (see, Eschbach v....