Clarke v. Clarke — 101 A.D.2d 911

Majority

p. 911

Jacqueline Clarke, Respondent, v William J. Clarke, Appellant.

Appeal from an order of the Family Court of Broome County (Dickinson, Jr., J.), entered April 7, 1983, which, inter alia, provided that the primary residence of the parties’ child would continue with plaintiff. H The sole issue in this case is whether that portion of Family Court’s order awarding physical custody of the parties’ five-year-old son to plaintiff mother subject to defendant father’s visitation rights should be disturbed. We think not and affirm. We do not liken the actions of plaintiff in taking the child to New Hampshire to child snatching (cf. Matter ofNehra v Uhlar, 43 NY2d 242 ), since plaintiff neither concealed the location of herself and the child from defendant nor denied him access to the child. Defendant’s reliance upon Entwistle v Entwistle ( 61 AD2d 380 ), Courten v Courten ( 92 AD2d 579 ) and Daghir v Daghir ( 82 AD2d 191 , affd 56 NY2d 938 ) is misplaced, since the factual situations in those cases clearly differ from the circumstances in the instant action in which there has been neither concealment nor denial of access to the child. Moreover, plaintiff has not violated any court order, either temporary or permanent. The rationale of the cases relied upon by defendant, in which custody has been decided by a court order, cannot be extended to the instant situation. Since the primary

p. 912

consideration in child custody cases is the best interest of the child (Domestic Relations Law, § 70; Friederwitzer v Friederwitzer, 55 NY2d 89 , 93), we cannot say upon this record that the court erred in its decision. Furthermore, we should not substitute our evaluation of the subjective factors for that of Family Court (Eschbach v Eschbach, 56 NY2d 167 , 173-174), especially since the parties had initially stipulated to plaintiff’s temporary custody subject to defendant’s visitation rights, and subsequently agreed that custody would be joint. 11 Nor are we persuaded by defendant’s argument that Family Court’s decision is flawed for failure to state facts deemed essential to its result (see CPLR 4213, subd [b]; Family Ct Act, § 165). This court recently stated in Giordano v Giordano ( 93 AD2d 310 ) that “ ‘[wjhile the court need not set forth evidentiary facts, it must state ultimate facts: that is, those facts upon which the rights and liabilities of the parties depend’ ” (id., at p 311, quoting Matter of Jose L.I., 46 NY2d 1024 , 1025-1026). In our opinion, the decision in this case sets forth the facts required to comply with the established criteria (see Matter of Jones v Jones, 92 AD2d 632 ). U We also fail to find sufficient reason present to disturb a long-standing custodial arrangement (Matter of Fountain v Fountain, 83 AD2d.694, affd 55 NY2d 838 ), especially since defendant had agreed to essentially the same arrangement previously. Absent changed circumstances, he should not now be heard to complain (People ex rel. Seibert v Seibert, 60 AD2d 692 , 693). Finally, we find substantial evidence in this record to support the decision. The child’s daily regimen with his mother in New Hampshire is neither harmful to him nor detrimental to his relationship with defendant. ¶ Order affirmed, without costs. Mahoney, P. J., Kane, Weiss, Mikoll and Yesawich, Jr., JJ., concur.

Cases cited

Nehra v. Uhlar 43 NY2d 242 N.Y. 1977-12-15 p. 911
Entwistle v. Entwistle 61 AD2d 380 N.Y. App. Div. 1978-02-21 p. 911
Daghir v. Daghir 82 AD2d 191 N.Y. App. Div. 1981-07-27 p. 911
Daghir v. Daghir 56 NY2d 938 N.Y. 1982-06-17 p. 911
Friederwitzer v. Friederwitzer 55 NY2d 89 N.Y. 1982-02-16 at 93 p. 912
Eschbach v. Eschbach 56 NY2d 167 N.Y. 1982-05-13 at 173-174 p. 912
Giordano v. Giordano 93 AD2d 310 N.Y. App. Div. 1983-05-05 p. 912
In re Jose L. I. 46 NY2d 1024 N.Y. 1979-03-29 at 1025-1026 p. 912
Fountain v. Fountain 55 NY2d 838 N.Y. 1982-01-07 p. 912

Statutes and regulations cited

Domestic Relations Law p. 912