Porcello v. PorcelloPorcello v. Porcello
PETER C. PORCELLO, Appellant-Respondent, v ANNA PORCELLO, Respondent-Appellant. [917 NYS2d 338]—
Plaintiff (hereinafter the father) and defendant (hereinafter the mother) were married in 2004 and are the parents of a daughter (born in 2007). Within weeks of the child‘s birth, the parties’ relationship deteriorated to the point that the mother filed a family offense petition and a petition seeking custody of the child. The parties physically separated, with each moving to their respective parents’ homes. The father then commenced the instant action for divorce, which was consolidated with the mother‘s pending Family Court matters.
During the pendency of these proceedings, in March 2008, Family Court issued a temporary order granting primary physical custody of the child to the mother, with the father having visitation every Monday and Wednesday during the daytime hours, and an overnight visitation every other Saturday. In July 2008, after the father‘s work schedule changed, the parties modified the temporary order without court intervention, such that, in every two-week cycle, the father would have five overnight visits with the child—every Wednesday and a three night weekend (Friday, Saturday and Sunday) every other week, in addition to a daytime visit every Monday—and the mother would have the remaining nine overnight visits.1
Prior to trial, the parties were able to reach an agreement with regard to all issues except physical custody, parenting time and child support. Following a trial that took place over two days in January and February 2009, Supreme Court issued a decision and order in June 2009 granting, among other things, primary physical custody of the child to the mother and adopting the custody arrangement previously agreed-upon by the parties in July 2008. A judgment of divorce incorporating the decision and order, as well as the parties’ written agreement, was thereafter entered. The parties now cross-appeal.
We first consider the father‘s argument that Supreme Court‘s
Here, we find that Supreme Court properly considered the best interests of the child in fashioning the custody and visitation order. While the relief sought by the father would equalize the number of overnight visits each party would have with the child, the court determined that such a division was not appropriate under the circumstances in this case. The record reveals that the father is, at times, unable to set aside his ill feelings toward the mother and cooperate with her in connection with caring for their child. Instead of considering the best interests of the child, the father testified that even if he is unable to care for the child during his sought after parenting time, he would rather the child be cared for by a relative than the mother. For example, on Wednesdays, during the father‘s parenting time, the child is cared for by the paternal grandmother while he works. The father testified that if the child was sick on a Wednesday and the mother took time off from her own work to care for the child, he would not permit the mother to care for the child, even though he could not care for the child. The father also conceded that on one particular Wednesday in 2008, the day before the Thanksgiving holiday, he initially denied the mother‘s request for more time with the child, even though he was at work, but then agreed only if he received extra time with the child the next day.
On the other hand, the mother, who has served as the primary caregiver for most of the child‘s young life and has adjusted her work schedule to allow her to spend all of her parenting time with the child, has been willing to cooperate with the father by attempting to arrange a visitation schedule that accommodates the father‘s work schedule, and has continuously
Next, we are unpersuaded that Supreme Court erred in permitting the mother‘s counsel to inquire about the parties’ acromonious relationship and certain disagreements regarding scheduling and care for the child. The court “is afforded broad discretion in establishing the parameters of the proof at trial” (Matter of Gardner v Gardner, 69 AD3d 1243, 1244 [2010]), and such evidence is relevant to a determination as to what custody arrangement is in the child‘s best interests and addresses the parties’ “ability to guide and provide for the child‘s overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Moor v Moor, 75 AD3d at 676 [internal quotation marks and citations omitted]).
We are likewise unpersuaded that Supreme Court disregarded the position of the attorney for the child, who opined in his written summation that the child‘s best interests would be served by granting the father overnight visitation on Tuesdays. While the position of the attorney for the child is a factor to be considered, it is not determinative (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]; Munson v Lippman, 2 AD3d 1252, 1254 [2003]; Matter of Perry v Perry, 194 AD2d 837, 838 [1993]). Although not required, it would have been appropriate for Supreme Court to specifically reference the position of the attorney for the child in its decision. Notwithstanding the court‘s failure to do so, we are satisfied that it considered all of the relevant factors in reaching its conclusion, which is supported by a sound and substantial basis in the record.
We are also unpersuaded by the mother‘s argument that Supreme Court erred in failing to grant child support retroactive to either the date the Family Court petitions were filed, or one of several dates prior to the court‘s decision. While an award
Peters, J.P., Malone Jr., Stein and McCarthy, JJ., concur.
Ordered that the judgment is affirmed, without costs.
EGAN JR., J.