Krebsbach v. Gallagher

Citation181 A.D.2d 363,587 N.Y.S.2d 346
PartiesIn the Matter of Theodore KREBSBACH, Respondent, v. Nancy GALLAGHER, Appellant.
Decision Date03 August 1992
CourtNew York Supreme Court Appellate Division

Labert Lang & Willen, Hauppauge (Robert D. Lang, Morton I. Willen and Karen D. McGuire-Mangan, of counsel), for appellant.

White & Cirrito, Hempstead (Michael L. Cirrito, of counsel), for respondent.

Joseph P. Abbenda, Hempstead, Law Guardian on behalf of the child.

Before MANGANO, P.J., and BALLETTA, LAWRENCE and COPERTINO, JJ.

BALLETTA, Justice.

We recognize at the outset the general rule that custody determinations are ordinarily a matter of discretion for the hearing court (see, Gage v. Gage, 167 A.D.2d 332, 561 N.Y.S.2d 299). However, while the hearing court's determination, based as it is upon a firsthand assessment of the parties, their credibility, their character, and temperaments, should be accorded great deference on appeal (see, Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235), the authority of this court is as broad as that of the hearing court (Matter of Louise E.S. v. W. Stephen S., supra; Leistner v. Leistner, 137 A.D.2d 499, 524 N.Y.S.2d 243), and we would be seriously remiss if, simply in deference to the findings of the Hearing Judge, we allowed a custody determination to stand where, as here, it lacks a sound and substantial basis in the record ( Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see also, Skolnick v. Skolnick, supra ).

With respect to any determination as to a change of custody, the paramount consideration must be the best interests of the children (see, Eschbach v. Eschbach, supra; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765; Keating v. Keating, 147 A.D.2d 675, 538 N.Y.S.2d 286). Among the factors to be considered are the quality of the home environment and the parental guidance the custodial parent provides for the child (see, Eschbach v. Eschbach, supra, 56 N.Y.2d at 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, 38 N.Y.2d 700, 702, 382 N.Y.S.2d 472, 346 N.E.2d 240), the ability of each parent to provide for the child's emotional and intellectual development (see, 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 (see, Eschbach v. Eschbach, supra ), the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect (see, Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 401 N.Y.S.2d 168, 372 N.E.2d 4). Moreover, priority in custody disputes should usually be given to the parent who was first awarded custody by the court or to the parent who obtained custody by voluntary agreement (see, Robert C.R. v. Victoria R., 143 A.D.2d 262, 264, 532 N.Y.S.2d 176; Richman v. Richman, 104 A.D.2d 934, 935, 480 N.Y.S.2d 551; see also, Friederwitzer v. Friederwitzer, supra, 55 N.Y.2d at 94, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Nehra v. Uhlar, supra, 43 N.Y.2d at 251, 401 N.Y.S.2d 168, 372 N.E.2d 4; Mascoli v. Mascoli, 132 A.D.2d 653, 518 N.Y.S.2d 25). It is well settled, furthermore, that the courts will not disrupt sibling relationships unless there is an overwhelming need to do so (see, Eschbach v. Eschbach, supra, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Ebert v. Ebert, supra, 38 N.Y.2d at 704, 382 N.Y.S.2d 472, 346 N.E.2d 240; Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 601; Matter of Jones v. Payne, 113 A.D.2d 968, 969, 493 N.Y.S.2d 650; Pawelski v. Buchholtz, 91 A.D.2d 1200, 459 N.Y.S.2d 190).

With these principles firmly in mind, it becomes clear that the Family Court's determination to award sole custody to the father was improper and contrary to the best interests of the children.

The parties herein were married on October 27, 1979, and had two sons, Ryan, born on June 6, 1981, and Kevin, born on September 6, 1982. Pursuant to the terms of a separation agreement entered into on or about March 17, 1987, and subsequently amended on January 6, 1988, the parties shared joint custody of the two boys, with the children's primary residence being with the mother. The father was to have visitation every Tuesday afternoon until 8:30 P.M., two out of every four weekends, the entire month of August and one-half of the major holidays and school vacations. The judgment of divorce entered March 4, 1988, incorporated the provisions of the amended separation agreement. The mother remarried in July 1988 and the father remarried in September 1990.

In December 1988 and then again in August 1989, the mother petitioned to modify the visitation schedule. In November 1989, the father cross-petitioned to modify the visitation schedule. Subsequently, each party withdrew the previously-filed petitions and filed a new petition seeking sole custody. Forensic examinations were conducted and a hearing on custody was commenced in September 1990. After several days of testimony, the parties stipulated to adjourn the hearing pending therapy sessions with a court-appointed psychiatrist, Dr. Marc S. Reubins. The hearing recommenced in January 1992, and on March 26, 1992, the Family Court transferred custody to the father.

We find that, contrary to the Family Court's determination, the mother is a loving and caring parent who, with her second husband, has established a comfortable and stable family environment within which to raise the children. The evidence shows that the children were doing well in school, enjoyed playing with their friends in the neighborhood in which they lived, were active in extracurricular activities and loved and enjoyed living with their stepbrothers. Moreover, although their wishes are not determinative owing to their youth, it is interesting to note that both boys, during an in-camera interview, indicated a preference to stay with their mother (see, Matter of Donna G. v. Gloria G., 153 A.D.2d 558, 544 N.Y.S.2d 215). Dr. Reubins noted that the mother loved her children very much (see also, Matter of Joseph P.B. v. Margaret O'D., 161 A.D.2d 545, 556 N.Y.S.2d 49).

The father and the Family Court refer to the alleged interference by the mother with the father's visitation. However, while there were often problems with visitation, there is nothing in the record which would suggest that the mother intentionally interfered with visitation or that her conduct rose to such a level that she should be deprived of custody (see, Matter of Hohenforst v. Hohenforst, 169 A.D.2d 952, 564 N.Y.S.2d 846; Keating v. Keating, supra; Leistner v. Leistner, supra; Resnick v. Zoldan, 134 A.D.2d 246, 520 N.Y.S.2d 434). In fact, the hearing testimony, as well as the transcripts of taped telephone conversations between the parties, show that many of the problems that arose with respect to visitation were precipitated by the father's repeated efforts, indeed on an almost weekly basis, to renegotiate the terms of the Tuesday evening visitation (see, Weinreich v. Weinreich, 184 A.D.2d 505, 585 N.Y.S.2d 769 [2d Dept., 1992]; Skolnick v. Skolnick, supra ). The record indicates that the mother, although she was not required to do so by the separation agreement, would allow the father to visit the children on another weeknight whenever he could not make the scheduled Tuesday visitation. There is not one scintilla of evidence that the mother discouraged the boys from visiting with their father.

Moreover, while there was animosity between the mother and the father and his parents such that joint custody was no longer appropriate (see, Lohmiller v. Lohmiller, 140 A.D.2d 497, 528 N.Y.S.2d 586; Trolf v. Trolf, 126 A.D.2d 544, 510 N.Y.S.2d 666; Robinson v. Robinson, 111 A.D.2d 316, 318, 489 N.Y.S.2d 301), this animosity did not spill over to the children. Indeed, as the Family Court observed:

"The boys love both their mother and their father. They enjoy the time they spend with their father. They have good feelings about their relationship with other people in their lives including their grandmother and grandfather. They enjoy the time they spend with their grandparents."

In this regard, it is important to note the testimony of Dr. Reubins, who, after treating the parties once a week for almost 16 months for over 50 sessions, noted that the mother had made progress in dealing with her feelings toward the father and that "she hasn't poisoned the kids".

Nor, as has been suggested by the father and the Family Court, is there any evidence that the mother and her second husband have attempted to alienate the boys from their father. Again, after 16 months of observing the parties in therapy, Dr. Reubins unequivocally stated that he saw no signs of "parent alienation syndrome"--"I don't think there is a plot or plan to alienate the children". As far as the mother's second husband was concerned, Dr. Reubins noted that he was merely attempting to be a good parent to the two boys. Moreover, Dr. Reubins also testified that although there may have been a "lack of vigilant planning" on the part of the mother and father, he saw no evidence of a malevolent intent to deny the father access to his children or to deny him his appropriate role.

Similarly, many of the complaints raised by the father and many of the reasons given by the Family Court in support of its decision to change custody merely reflect a difference in parenting styles rather than any unfitness by the mother. Indeed, Dr. Reubins pointed out that while "[t]heir general values of home and family and sports and school are very parallel, their specific values of cinema and comics and reading perhaps are different". Significantly, Dr. Reubins testified that ...

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