Prete v. Prete
| Decision Date | 24 May 1993 |
| Citation | 598 N.Y.S.2d 79,193 A.D.2d 804 |
| Parties | In the Matter of Francis C. PRETE, Appellant, v. Deborah B. PRETE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Timothy J. Brennan, Mount Kisco, for appellant.
Murray Ramson, New York City, for respondent.
Maria Joy Frank, Ossining, Law Guardian on behalf of the child.
Before BRACKEN, J.P., and O'BRIEN, RITTER and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Westchester County (Barone, J.), entered December 3, 1990, as, after a hearing, declined to award him sole custody of the parties' child and directed that the physical residence of the child was to remain with the mother.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The parties were married in January 1976 and divorced pursuant to a judgment dated November 14, 1984. They have one son, Michael, who was born November 24, 1981. The parties' separation agreement, which survived but did not merge with the judgment of divorce, provided that the mother have sole custody of Michael with liberal visitation to the father. In May 1985 the father remarried. In September 1989 the father petitioned the court for a change of custody. After a lengthy hearing, the Family Court found that it would be in Michael's best interest for him to remain with the mother. The father appeals, contending he is entitled to sole custody. We disagree.
The primary concern in a determination of custody is, of course, the best interests of the child (see, Domestic Relations Law § 70; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260). When the parties have entered into an agreement as to which parent should have custody, priority should be given to the custody arrangement reached by voluntary agreement (see, Eschbach v. Eschbach, supra; Robert C.R. v. Victoria R., 143 A.D.2d 262, 264, 532 N.Y.S.2d 176). In determining whether a stipulation entered into by the parents with respect to custody should be modified, a court must consider "the quality of the home environment and the parental guidance the custodial parent provides for the child * * * the ability of each parent to provide for the child's emotional and intellectual development * * * the financial status and ability of each parent to provide for the child * * * the relative fitness of the respective parents, as well as the length of time the present custody has continued" (Keating v. Keating, 147 A.D.2d 675, 677, 538 N.Y.S.2d 286; see also, Matter of Sullivan v. Sullivan, 190 A.D.2d 852, 594 N.Y.S.2d 276).
Further, in evaluating custody matters, "respect is to be accorded the Trial Judge's advantage, not available to...
To continue reading
Request your trial
-
Young v. Young
... ... of court-appointed experts are but one factor to be considered in making any custody determination and are not determinative (see, Matter of Prete v. Prete, 193 A.D.2d 804, 598 N.Y.S.2d 79), such recommendations are entitled to some weight (see generally, Bluemke v. Bluemke, 155 A.D.2d 574, 575, ... ...
-
Steingart v. Fong
... ... v. D.T. , 152 A.D.3d 583, 584, 58 N.Y.S.3d 527 ; Matter of Nelson v. Nelson , 276 A.D.2d 634, 634, 714 N.Y.S.2d 909 ; Matter of Prete v. Prete , 193 A.D.2d 804, 805, 598 N.Y.S.2d 79 ) and, contrary to the father's contention, the court's stated reasons for disregarding the expert's ... ...
-
Alice C. v. Bernard G.C.
... ... City of New York, 60 N.Y.2d 57, 467 N.Y.S.2d 187, 454 N.E.2d 527; Matter of Prete v. Prete, 193 A.D.2d 804, 598 N.Y.S.2d 79; Stimmel v. Stimmel, 163 A.D.2d 381, 383, 558 N.Y.S.2d 112) ... Accordingly, the order ... ...
-
Muller v. Muller
... ... Rentschler, 204 A.D.2d 60, 611 N.Y.S.2d 523, appeal dismissed 84 N.Y.2d 1027, 623 N.Y.S.2d 182, 647 N.E.2d 454; Matter of Prete v. Prete, 193 A.D.2d 804, 598 N.Y.S.2d 79; Bluemke v. Bluemke, 155 A.D.2d 574, 575, 548 N.Y.S.2d 31; Asher v. Asher, 79 A.D.2d 904, 905, 434 ... ...