The parties are the unmarried parents of 4-year old “Katie.” Each seeks her custody. The mother asks for sole custody and primary physical placement to be with her. The father is asking for joint custody with a shared placement on a week-to-week basis. The court has held a fact-finding hearing and given the attorneys an opportunity to file written summations with the court.It is well settled that the best interests of the child is the paramount consideration when deciding the issue of the child’s custody, and the court must consider all relevant factors having a bearing thereon. Eschbach v. Eschbach, 56 NY2d 167 (1982); Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). On an initial custody determination, the factors to be considered in determining the child’s best interests include maintaining stability in the child’s life, the child’s wishes, each parent’s home environment, each parent’s fitness and past performance, each parent’s ability to guide and provide for the child’s overall well-being, and each parent’s willingness to foster a relationship between the child and the other parent. Antonella GG. v. Andrew GG., 169 AD3d 1188 (3d Dept 2019); Matter of Shirreece AA. v. Matthew BB., 166 AD3d 1419 (3d Dept 2018); Matter of Torkildsen v. Torkildsen, 72 AD3d 1405 (3d Dept 2010).At the time Katie was born, the parties were cohabiting. There were three admitted incidents of domestic violence, and at least two of them occurred while Katie was present. The father attributes them to stress he was feeling due primarily to a work-related injury that he suffered. However, by his own testimony, the injury occurred in 2017 and two of the three incidents took place in 2016. Photographic evidence was received showing some bruising that the mother suffered on one occasion when the father pushed her elbow through a wall. The father claims that he, too, suffered some injuries such as scratches or bruises but offered no evidence to support his claims.The most recent incident occurred in January 2018. The police were called and the father was ushered out of their apartment. He claims he went peacefully. He acknowledges that these incidents were the result of “poor choices” on his part and claims that he has since learned to control his temper by “stepping back and breathing.” In addition to the stress, the father testified that he believes that his prescription for Adderal had some role in his poor choices and that he has since taken himself off that medication and is now using marijuana daily with his doctor’s knowledge but not necessarily the doctor’s approval. He does not believe that the marijuana adversely affects his ability to parent Katie. The mother admitted to once being a marijuana user but claims that she no longer is. She is subject to random drug screens at work and a positive drug screen could jeopardize her job.Over the years, and at the time Katie was born, the mother received a four-year college degree which she pursued in stages at three different area colleges. While attending school, she worked evenings on a part-time basis. She is now gainfully employed at an annual salary of $45,000 per year with health benefits for herself and Katie. During the time that the parties cohabited, the father paid the rent on their apartment ($750 per month) while she paid for utilities and groceries. After they separated, she covered all the household expenses with little to no contribution from him.1 She has indebtedness of $23,000 from student loans but is making scheduled payments.The father is self-employed in cutting and caring for trees. He chooses not to work when he has Katie with him. His income tax returns for 2016-2018 were received in evidence and showed fairly marginal income, peaking at $11,810 in 2016 when he was working full-time and dropping to $5,787 in 2017 when he was out of work for some 3-5 months due to his injury. In 2018, his net business income of approximately $9,300 which exceeds his claimed living expenses by some $3,000. He expects his 2019 income to be less than what he made in 2018.While attending classes, the mother arranged for on-campus daycare for Katie and she paid the full amount without contribution from the father. She is obligated to pay regardless of whether Katie attends or not, so time that Katie spends with the father does not result in any saving to the mother for daycare. The father complains that the mother did not consult with him before arranging for this daycare but acknowledges that the care itself is “phenomenal.” For the upcoming year, the mother has arranged for daycare through the Chittenango School District at the Bridgeport Elementary School, which is a short distance from the father’s residence. There is no cost for this daycare.At present, the mother and Katie live in a two-bedroom apartment but the maternal grandmother is in the process of purchasing a one-family residence and has indicated that once the closing takes place, with the approval of the mortgage lender it is her intention to convey a “survivorship benefit”2 to the mother so the mother will have the security of a home for herself and Katie. The mother and Katie will live there with the maternal grandmother shortly after closing. The home would provide Katie with her own bedroom.The father resides in a one-family residence owned by his mother. He is not required to pay rent. The mother’s boyfriend resides there as well. This is a four-bedroom home located not far from the shore of Oneida Lake where, during the summer months, Katie can swim. It lies in the same school district as the residence being purchased by the maternal grandmother. The father has a girlfriend with whom he occasionally spends the night in her one-bedroom apartment. Katie has spent the night there on a few occasions but no proof was offered with respect to the sleeping arrangements. The father does not have any ownership interest in his mother’s residence. The father testified that he has a good relationship with his mother but she did not appear and testify herself.Up to this point, Katie’s custody has been the subject of the parties’ own informal agreement. Prior to November, 2018, she had resided primarily in her mother’s care but it appears that the father had regular contact with her. In November, at the father’s insistence and with no enthusiasm from the mother, the parties began to share parenting time on a week on / week off basis. The mother did not believe she had the legal ability to reject this, so she has reluctantly gone along with it but does not want it to continue. The father believes that, in fairness to him, it should continue.The father claims that the maternal grandmother is an alcoholic but offered to proof to substantiate this claim. The grandmother testified that she enjoys an occasional glass of wine but has no alcohol or other substance abuse issues. The father’s claim in this regard finds no support in the record.Communication between the parties is problematic. The father acknowledges that he cannot (or will not) discuss issues with the mother and that his relationship with the maternal grandmother is no better. Communication takes place between the mother and the paternal grandmother.There is nothing in the record that causes the court to have any concern about Katie’s care in the mother’s custody. The mother has purchased a book entitled “Preschool Super Scholar” and has used it to stimulate Katie’s intellectual growth by introducing her to the ABC’s and some basic number recognition. The mother has been Katie’s primary caregiver and has provided financial support for her with little to no contribution from the father.The court finds that the mother has demonstrated her willingness to at least attempt to keep the father informed and involved in Katie’s life. She has maintained a good relationship with the paternal grandmother and has testified convincingly that she intends to continue that. There does not seem to be a reciprocal commitment from the father.Joint custody is feasible only where there is effective communication between the parties. Matter of David ZZ. v. Suzane A., 152 AD3d 880 (3d Dept 2017). The incidents of domestic violence against the mother and the father’s unwillingness to communicate with her leaving her with no option but to communicate with his mother instead militate heavily against his preference for joint custody. Matter of Claflin v. Giamporcaro, 75 AD3d 778 (3d Dept 2010), lv denied 15 NY3d 710 (2010).Where, as here, the child’s existing custody arrangement has been the result of the parents’ informal agreement without any order or input from Family Court, that is but one factor for the court to consider. It does not carry the weight of a custody order that resulted from a plenary hearing. The court will not require proof of any changed circumstances to modify such an arrangement in order to protect or promote the child’s best interests. Matter of Hissam v. Mackin, 41 AD3d 955 (3d Dept 2007), lv denied 9 NY3d 809 (2007); Matter of Hillenbrand v. Hillenbrand, 37 AD3d 981 (3d Dept 2007).The father’s preference for a custody order that will provide him with equal parenting time does not strike the court as being consistent with Katie’s best interest. In the absence of agreement between the parties or proof that the child would benefit from such arrangement, the court would not be inclined to order it. “Children need a home base. Particularly where alternating physical custody is directed, such custody could, and would generally, further the insecurity and resultant pain frequently experienced by the young victims of shattered families.” Braiman v. Braiman, 44 NY2d 584, 589 (1978). Such an arrangement more often than not serves more to placate the wishes of one of the parents than to address the child’s needs. Matter of Welch v. Welch, 39 AD3d 910, 911 (3d Dept 2007), app dismissed 9 NY3d 988 (2007). Such is the case here.For nearly her entire life, Katie has been primarily in her mother’s custody where she has thrived. The mother is providing a stable home for her and there is nothing in the record that would support a finding that any of her needs are not being met. There seems no reason to doubt the father’s love for Katie and his willingness to be a good parent but, as between the two, the mother strikes the court as being the better and more nurturing parent.The custody order has been prepared by the court.Dated: July 10, 2019
