Brown v. SkalwoldBrown v. Skalwold
This arrangement apparently proved workable until November 1993, at which time petitioner asked respondent to allow the children to return to Ithaca; respondent agreed and enrolled the children in school. The children remained with respondent until January 1994, at which time petitioner relocated with the children to New Hampshire and, almost immediately thereafter, to Hawaii, where she resided until February 1994, at which time she moved back to Ithaca. The children remained in petitioner’s custody until June 1994 when physical custody switched back to respondent.
Following petitioner’s return to Ithaca, the relationship between the parties deteriorated. Petitioner’s request for increased visitation with the children apparently was denied by respondent and, in February 1995, petitioner filed an amended petition seeking sole custody of the children and respondent cross-petitioned for similar relief. A hearing was conducted in June 1995, at the conclusion of which Family Court dismissed the respective petitions and continued the joint custody arrangement. This appeal by respondent followed.
A review of the record reveals that the primary issue addressed at the hearing was the parties’ alleged inability to communicate and engage in cooperative decision-making with respect to issues affecting the children. Although mindful of the deference traditionally accorded Family Court’s findings in this regard, we are of the view that the record establishes that the parties’ relationship indeed has deteriorated to the point where joint custody is no longer either appropriate or workable.
It is well settled that "[j]oint custody involves the sharing by the parents of responsibility for and control over the upbring
Here, petitioner candidly testified that she hates respondent and previously has expressed the wish that Susan Titus, who lives with respondent, murder him. Respondent testified that communication between the parties broke down following petitioner’s return from Hawaii in February 1994 and that they are no longer able to reach agreement regarding fundamental issues affecting the children, such as the children’s need for counseling, the level of the children’s extracurricular activities and appropriate methods of discipline.
To be sure, this Court has upheld awards of joint custody where the parties’ conduct amounted to nothing more than occasional bickering and their parenting styles, though different, did not impede their ability to work together for the good of the children (see, e.g., Matter of Fedun v Fedun, supra; Palmer v Palmer, supra). Here, however, the parties’ battles go beyond minor skirmishes (compare, Matter of Monahan v Monahan,
Having concluded that joint custody is no longer appropriate, the issue then becomes to whom custody of Leta and Ella should be awarded. To this end, it is well settled that the primary consideration in any custody matter is the best interest of the child, which, in turn, requires consideration of a number of factors, including "the quality and stability of the respective home environments and each parent’s past performance, relative fitness and ability to provide for and guide the child’s intellectual and emotional development” (Matter of Perry v Perry,
Respondent resides with Titus in a two-story residence, located in close proximity to a park, where the children share a bedroom complete with bunk beds, shelves and a work table. Additionally respondent, who has remained in Ithaca throughout this period and enjoys steady employment as a teacher,
In reaching this conclusion, we are neither suggesting that respondent is a perfect parent
Cardona, P. J., Mikoll, Casey and Yesawich Jr., JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by reversing so much thereof as dismissed respondent’s cross petition; cross petition granted and matter remitted to the Family Court of Tompkins County for determination of an appropriate visitation schedule for petitioner; and, as so modified, affirmed.
Notes
. Although petitioner cites certain instances of cooperation in her brief, we note that most of these occurred shortly after her return from Hawaii.
. For example petitioner, who on at least one occasion made derogatory comments about Titus, conceded on cross-examination that she resents the relationship that Titus has developed with the children.
. In this regard, we cannot overlook petitioner’s series of moves with the children between November 1993 and February 1994 which, the record reveals, necessitated the children changing schools three times within this brief period. Additionally, at the time of the hearing in June 1995, petitioner was living in two trailers, with the children sleeping in one trailer and petitioner and her husband sleeping in the other. Neither the trailers nor the converted garage separating them had indoor plumbing; petitioner purchased her drinking water and the only sanitary facilities consisted of a "port-a-potty”. During the winter months, the trailers were heated with a series of space heaters. Although petitioner testified, and Family Court found, that she would be relocating to more appropriate surroundings if awarded custody, the fact remains that petitioner’s living quarters at the time of the hearing were entirely unsuitable.
. Indeed, we do not condone respondent’s surreptitious recording of telephone conversations with petitioner or his maintenance of an extensive journal detailing his experiences with her, both of which he apparently plans to make available to the children once they reach adulthood for the purpose of explaining "[his] version of the facts”.