Matter of B. v J.

2018, NY Slip Op. 02148

L.B., Petitioner, Respondent.

J.L. Respondent, Appellant.

Decision

This case is an appeal from the Queens County Family Court, May 6, 2016. The order awarded the parties joint legal custody of their child, with the mother receiving primary physical custody and the father being awarded visitation. It was decided that the father would be awarded visits every other weekend and overnight visits when the mother was working. This would include pickups from daycare and drop-offs to school the following morning.

The court orders that the provision as would be worked out with the father doing the pick ups and drop offs would be deleted from the agreement. In exchange, the father would receive 2-weekday visits following a weekend where he had had custody of the child. The particular calendar days of the visits during the week would be determined by the couple, as well as the times of pick up and drop off. This decision is affirmed.

The court said that the primary consideration is what is in the best interest of the child (Eschbach v Eschbach 56 NY2d 167, 171, Matter of Sahadath v. Andaverde 145 AD3d 731). It is important to note that legally, no parent has a prima facie right to a child (Friederwitzer v Friederwitzer 55 NY2d 89,93; Matter of Wallace v Roberts 105 AD3d 1053, Matter of Schultheis v Schultheis 141 AD3d 721). When deciding custody, the court will always decide based on what is in the child’s best interests. This includes considering several factors such as the level of their home environment, the ability of the parent to provide for the child’s intellectual and emotional development, financial well-being and the effect that a custody award will have on the other (Eschback v Eschback 56 NY2d 171).

The court will consider these factors in their entirety (Matter of Bowe v Bowe 124 AD3d 645).

Here, the court held an evidentiary hearing on custody and it must be given weight-so as not to disturb the matter unless it lacks sound reasoning (Matter of Klein v Theus 143 AD3d 984, Iacono v Iacono 117 AD3d 988).

The court here determined that both parents were fit, ad the court decided what was best for the child. Determining the mother should have primary custody was correct and had a sound legal basis behind it. At the present, the court sees no reason to disturb it (Matter of Lawlor v Eder 106 AD3d 793, Matter of Quinones v Quinones 139 AD 1072).

The court, however, was incorrect in conditioning the father’s visitation dependent on the mother’s work schedule. The visitation schedule should be determined based on what is in the best interest of the child (Cesaro v Cesaro 168 AD2d 911, Chamberlain v Chamberlain 24 AD3d 589). The mother worked as a nurse and the way her schedule worked it is in the child’s best interest to have a set schedule rather than one that is constructed around an ever-changing work schedule.

The Attorney defending the child did not demonstrate properly what was in the best interest of the child (Matter of McQueen v Legette 125 AD3d 863).

If you have an issue with custody or visitation, it is important to seek legal advice to ensure that your interests are protected. Speak to the legal team at Stephen Bilkis and Associates for guidance and a free consultation. They have offices to serve you throughout New York, including locations in Manhattan, Queens, Brooklyn, the Bronx, Staten Island, Nassau County, Suffolk County and Westchester County. Call them today for a free consultation at 1-800-NYNYLAW.