Lawrence C. v. Anthea P.

• Decision Date: 16 December 2010
• Citation: 79 A.D.3d 577,912 N.Y.S.2d 216
• Parties: In re LAWRENCE C., Petitioner-Respondent, v. ANTHEA P., Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 216 79 A.D.3d 577 In re LAWRENCE C., Petitioner-Respondent, v. ANTHEA P., Respondent-Appellant. Supreme Court, Appellate Division, First Department, New York. Dec. 16, 2010.

Elayne Kesselman, New York, for appellant.

Lawrence C., respondent pro se.

SAXE, J.P., FRIEDMAN, MOSKOWITZ, FREEDMAN, ROMÁN, JJ.

Order, Family Court, New York County (Elizabeth Barnett, Referee), entered on or about July 7, 2009, which, insofar as appealed from, as limited by the briefs, granted the petition to the extent of directing that the subject children reside primarily with petitioner father upon attaining the age of four and awarded final decision-making authority to the father concerning the children's education, extracurricular activities and medical care, unanimously reversed, on the facts, without costs, the direction to change the division of custodial time between the parties upon the children's attaining the age of four and the award of final decision-making authority vacated, the petition denied insofar as it seeks an award of greater custodial time to the father than he currently enjoys, and the matter remanded for further proceedings regarding other relief sought by the petition.

The parties met through a Web site advertisement placed by respondent mother seeking a man with whom to conceive a child. Thereafter, the parties agreed to try to conceive through artificial insemination, contemplating that petitioner father would be an active parent to any resulting child. Since the subject twin children were born in June 2007, the parties have shared custody, but the mother has been the primary custodian. Currently, in every two-week period, the children spend 10 nights with the mother and four nights with the father.

As a result of disagreements between the parties that began to arise even before the children were born, the father commenced this proceeding seeking primary custody in October 2007. The order appealed from (rendered by a referee pursuant to the parties' stipulation) directs, inter alia, that, "upon attaining the age of 4 years and enrollment in school," the children shall reside primarily with the father. Specifically, the order directs that the children, after the change in the division of custody, are to be in the mother's custody three out of every four weekends (Friday 5:00 p.m. to Sunday 5:00 p.m.) and from 5:00 p.m. to 7:30 p.m. two Wednesdays per month (those preceding and following the first Saturday of each month), and in the father's custody the remainder of the time. On the mother's appeal, we reverse andvacate the direction to alter custodial arrangements when the children attain the age of four.

The touchstone of a child custody determination is "the best interest of the child, and what will best promote its welfare and happiness" (Domestic Relations Law § 70). Although each case must be decided on its particular facts, the courts, out of concern for maintaining stability in a child's life, have long heldthat "[c]hanges in conditions which affect the relative desirability of custodians ... are not to be accorded significance unless the advantages of changing custody outweigh the essential principle of continued and stable custody of children" ( Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 550, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976]; see also Alan G. v. Joan G., 104 A.D.2d 147, 153, 482 N.Y.S.2d 272 [1984]; Matter of Larkin v. White, 64 A.D.3d 707, 709, 884 N.Y.S.2d 90 [2009]; Matter of Moorehead v. Moorehead, 197 A.D.2d 517, 519, 602 N.Y.S.2d 403 [1993], appeal dismissed 82 N.Y.2d 917, 610 N.Y.S.2d 146, 632 N.E.2d 456 [1994]; Meirowitz v. Meirowitz, 96 A.D.2d 1030, 466 N.Y.S.2d 434 [1983], appeal dismissed 60 N.Y.2d 1015 [1983] ). Hence, "[p]riority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded to the first custody awarded in litigation or by voluntary agreement" ( Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 251, 401 N.Y.S.2d 168, 372 N.E.2d 4 [1977] ). In short, the parent seeking a change in custody arrangements bears the burden of proof that the change is in the child's best interests ( see People ex rel. Wasserberger v. Wasserberger, 42 A.D.2d 93, 96, 345 N.Y.S.2d 46 [1973], affd. 34 N.Y.2d 660, 355 N.Y.S.2d 580, 311 N.E.2d 651 [1974] [petition to change custody denied because petitioner "has shown nothing to warrant a change"]; Matter...