Louise E.S. v. W. Stephen S.

• Decision Date: 21 March 1985
• Citation: 477 N.E.2d 1091,64 N.Y.2d 946,488 N.Y.S.2d 637
• Parties: , 477 N.E.2d 1091 In the Matter of LOUISE E.S., Appellant, v. W. STEPHEN S., Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 637

488 N.Y.S.2d 637

64 N.Y.2d 946, 477 N.E.2d 1091

In the Matter of LOUISE E.S., Appellant, v. W. STEPHEN S., Respondent.

Court of Appeals of New York.

March 21, 1985.

John J. Crimmins, III, Kinderhook, and Thomas J. Donohue for appellant.

Andrew F. Capoccia, Albany, for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 101 A.D.2d 287, 475 N.Y.S.2d 920, should be affirmed, without costs.

The authority of the Appellate Division in matters of custody is as broad as that of the Trial Judge (see, Kobylack v. Kobylack, 62 N.Y.2d 399, 477 N.Y.S.2d 109, 465 N.E.2d 829; Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15). When the Appellate Division reverses a custody award made by Special Term, our function is, therefore, to decide, taking into consideration the various factors on which custody awards depend, which determination of the courts below comports more nearly with the weight of the evidence (Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; cf. Matter of Ray A.M., 37 N.Y.2d 619, 622-623, 376 N.Y.S.2d 431, 339 N.E.2d 135).

In that evaluation respect is to be accorded the Trial Judge's advantage, not available to appellate Judges, in being able to observe the demeanor of the witnesses (id.; Boyd v. Boyd, 252 N.Y. 422, 169 N.E. 632), as well as the desire of the child whose custody is in issue (Eschbach v. Eschbach, 56 N.Y.2d, at p. 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260, supra ), but neither is determinative (id.). Stability is likewise an important consideration but the disruption of change is not necessarily conclusive (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765). Primary among the circumstances to be considered in determining the best interests of the child are the ability to provide for the child's emotional and intellectual development, the quality of the home environment and the parental guidance provided (Eschbach v. Eschbach, 56 N.Y.2d, at p. 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260, supra ).

In the instant case the agreement between the parents, incorporated in the divorce decree, provided for joint custody but physical residence of the then five-year-old boy with his mother, either party, however, to be entitled, upon application, to a de novo hearing as to sole custody. That arrangement indicates the father's willingness under the then existing circumstances to have his son reside with his mother and bears...