Thillman v. Mayer

• Decision Date: 10 June 2011
• Docket Number: 775 CAF 10-00316
• Parties: IN THE MATTER OF LORI M. THILLMAN, PETITIONER-RESPONDENT-APPELLANT, v. CHARLES R. MAYER, RESPONDENT-PETITIONER-RESPONDENT.
• Court: New York Supreme Court — Appellate Division

2011 NY Slip Op 04930

IN THE MATTER OF LORI M. THILLMAN, PETITIONER-RESPONDENT-APPELLANT,
v.
CHARLES R. MAYER, RESPONDENT-PETITIONER-RESPONDENT.

775 CAF 10-00316

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Entered: June 10, 2011

PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.

Appeal from an order of the Family Court, Seneca County (Dennis F. Bender, J.), entered November 6, 2009 in a proceeding pursuant to Family Court Act article 6. The order, among other things, granted sole custody of the subject child to respondent.

PETER O. EINSET, GENEVA, FOR PETITIONER-RESPONDENT-APPELLANT.

CHARLES GUTTMAN, ITHACA, FOR RESPONDENT-PETITIONER-RESPONDENT.

ANNE S. GALBRAITH, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR LILY E.M.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner mother appeals from an order that, inter alia, granted respondent father's cross petition seeking joint custody of the parties' child. Petitioner mother had sought modification of the existing joint custody arrangement, pursuant to which she had primary physical custody of the child upon the agreement of the parties. Contrary to the mother's contention, the record establishes that there was no prior court order determining custody. Thus, this proceeding involves an initial court determination with respect to custody and, "[a]lthough the parties' informal arrangement is a factor to be considered, [the father] is not required to prove a substantial change in circumstances in order to warrant a modification thereof" (Matter of Smith v Smith, 61 AD3d 1275, 1276; see Matter of Morrow v Morrow, 2 AD3d 1225). In addition, contrary to the mother's further contention, Family Court properly granted the father's cross petition seeking joint custody of the parties' child, with primary physical custody with the father. The court's determination following a hearing that the best interests of the child would be served by such an award is entitled to great deference (see Eschbach v Eschbach, 56 NY2d 167, 173), particularly in view of the hearing court's superior ability to evaluate the character and...