102 A.D.2d 963 | N.Y. App. Div. | 1984
Appeal from an order of the Family Court of Broome County (Coutant, J.), entered March 31,1983, which awarded the parties joint custody of their three children with primary physical custody to defendant. 11 The parties were married and have three children, born in 1970, 1972 and 1976. They lived together in Endwell, Broome County, until June of 1981, when plaintiff moved to Philadelphia, Pennsylvania, to pursue a job opportunity. Soon thereafter, the parties agreed to formally separate and executed a written separation agreement providing for joint custody for a period of one year, with physical custody to defendant. The agreement further provided that the parties would negotiate regarding permanent custody and that, should the parties be unable to agree, the matter would be determined by the appropriate court. In September of 1982, plaintiff commenced this action for divorce and for custody of the children. The issue of custody was transferred to Family Court for a hearing. Family Court ordered joint custody with primary physical custody to defendant. Plaintiff appeals. 11 Initially, plaintiff argues that Family Court failed to adequately set forth the facts supporting its decision to award primary physical custody to defendant. We agree. Family Court found that each parent was devoted to the children and went to great lengths to provide for their needs, and that the children appeared to be happy, healthy, emotionally stable and affectionate toward both parents. Such findings may well support the award of joint custody. However, Family Court failed to make any findings to explain why it chose to award the primary physical custody of the children to defendant other than rejecting one of plaintiff’s allegations regarding defendant (see Matter of Jones v Jones, 92 AD2d 632; Matter of Payette v Payette, 91 AD2d 733, 734). Since the record is sufficiently complete to permit this court to make a determination, we will do so in the interest of judicial economy and to avoid further delay (Matter of Milton v Dennis, 96 AD2d 628; Matter of Jones v Jones, supra). In so doing, we are cognizant of the principle that appellate courts should be reluctant to substitute their own evaluations of what the evidence dictates in terms of child custody for that of the trial court (see Eschbach v Eschbach, 56 NY2d 167, 173). Nonetheless, the trial court’s exercise of discretion in making child custody awards must have a sound and substantial basis