Rokitka v. Bauer

Sep 29, 1995
Versions:219 A.D.2d 834
632 N.Y.S.2d 50
1995 N.Y. App. Div. LEXIS 10885

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Family Court’s determination that it is in the best interests of the child to reside primarily with petitioner has a substantial basis in the record (see, Matter of Gloria S. v Richard B., 80 AD2d 72, 76). Because Family Court is "in the most advantageous position to evaluate the testimony, character, and sincerity of the parties” (DeJesus v DeJesus, 208 AD2d 587, 588; see, Eschbach v Eschbach, 56 NY2d 167), its findings are entitled to the greatest respect (see, Matter of Irene O., 38 NY2d 776, 777). Petitioner concedes that the court’s order does not conform to the decision, which changed the primary residence of the child but did not alter the joint custody arrangement. We modify the order on appeal, therefore, to conform to the decision (see, CPLR 5019 [a]; Matter of Calm Lake Dev. v Town Bd., 213 AD2d 979) by providing in the first decretal paragraph that joint custody continue and by providing that petitioner is the residential parent. (Appeal from Order of Erie County Family Court, Dillon, J. — Custody.) Present — Denman, P. J., Lawton, Fallon, Balio and Boehm, JJ.