In New York State, the awarding of joint custody by judicial decision is extremely limited in light of the 1979 New York Court of Appeals decision Braiman v Braiman, (44 NY2d 584, 378 N.E.2d 1019, 407 N.Y.S.2d 449 [1978]), wherein the Court held that

. . . joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion (see, e.g., Dodd v Dodd, 93 Misc 2d 641, 646-647, supra.;; Bodenheimer, pp 1010-1011). As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos. . .

Of course, whatever the ultimate disposition, it

must be, as it has always been, in the best interest of the children (see, e.g., Domestic Relations Law, § 240; Finlay v Finlay, 240 NY 429, 433-434 [Cardozo, J.]). . . [*2]

There are no painless solutions. In the rare case, joint custody may approximate the former family relationships more closely than other custodial arrangements. It may not, however, be indiscriminately substituted for an award of sole custody to one parent. Divorce dissolves the family as well as the marriage, a reality that may not be ignored.

The matter before this Court, based upon the testimony of the parties, affords the Court an opportunity to grant joint custody to these parents.

The father testified that the mother used the drug known as "ecstacy" beginning in the summer of 2008 and lasting until the summer of 2010. He testified that there were numerous weekends during this period wherein the mother abandoned the family to stay out late and attend parties where she used ecstacy. In support of his testimony, the father proffered a print out of the mother's Facebook message, which was written by the mother. In the message, dated August 2010, the mother asks another individual for ecstacy, using a pseudonym, and states that she will head to that individual's party directly after work. Also in the message, the mother writes "I probably just will come after work to your place. Because if I come home and then leave [the [*3]child] will be upset. He does not like [it] when I go out."

The mother testified that she only began using ecstasy in 2010, not 2008 as the father suggests. She further testified that she did not attend the party which the father referenced via the Facebook message as an example of her poor parenting. More importantly, the mother expressed that she has improved her life. She testified that she confronted her prior drug use following the couple's separation. The mother explains that she completed a 10 month drug treatment program and that both throughout the program and after its completion, she consistently tested negative for drug and alcohol use. The mother testified that she no longer uses drugs.

Parents' Work Schedules

The father is a vice president of a major financial institution. To support his request for sole custody, he testified that his work schedule is flexible in that it allows him to be home with the child when he has visitation. The father stated that he works from home "five days a week when I have visitation." The father also testified that when he is unable to be home, he employs a babysitter to care for the child.

The mother testified that she has obtained employment as a production coordinator for fashion. Her work schedule is Monday through Friday, from the morning until 7:00 p.m. When the mother is not at home and the child is not in daycare, the maternal grandmother is the child's caretaker. The father testified that he is concerned that the mother keeps the child out of daycare for no apparent reason when the mother has visitation with him. This concern is premised on prior actions of the mother. However, the mother testified that she only kept the child out of daycare on the occasions when she did not have to work. It was her desire to spend more time with the child since she was at home rather than to have the child spend the day in daycare.

Decision Making

The father is concerned that if the mother were awarded custody he would be excluded from participating in major decisions involving the child. The father testified that the mother makes unilateral decisions for the child, particularly in terms of health care needs. On one occasion, the father testified that the mother failed to consult with the father when she chose an out of network dentist for the child which resulted in "a lot of expensive dental work performed that cost [the father] a lot of money out of pocket." This out of net work dentist was chosen based upon a recommendation of the child's regular dentist. On cross-examination, the father testified that the dental work was "needed" and that the mother chose an "excellent dentist." His objection appeared to be premised on the cost.

The father also expressed a concern that the mother will not provide him proper access to his child. The father referenced a time prior to the pendente lite joint custody arrangement, during which the mother would not allow the father to call his son in order to wish him a happy birthday. Additionally, the father referenced the family court petition, which was filed after an alleged physical altercation in the marital home where the mother requested that visitation access be denied to the father. The mother explained that her statement in Family Court in 2010 about denying visitation access to the father was a statement made in response to a violent incident which caused her to flee from the martial home and seek protection. During cross-examination, the father denied this alleged incident of domestic violence. The mother stated, "I left the house [*4]after [the father] physically abused me in front of [the child] and strangled me in [the child's] bedroom and told me to get out of the house." The mother explained that the child was "very scared" at that moment and that incident is what lead to her request for denial of visitation to the father in Family Court. The mother contends that since that time, the parents have worked cooperatively and she now finds it necessary for the father to play an important role in the child's life.

Moreover, while the father believes the mother disparages him in front of the child, the mother testified that she does not "say bad things about [the child's] father because [she does not] want [the child] to be hurt by [a] bad impression of his father."

Despite the father's allegations of the mother's unilateral parenting, throughout the trial, neither party could identify a specific decision relating to the child upon which the parents could not ultimately come to an agreement during the past year and a half of the joint custody arrangement. In fact, the father testified that both parents have been able to share vacation and holiday time and that both parents are even able to spend time together with the child. The mother similarly testified that both parties have worked together in a cooperative fashion to ensure that the present joint custody arrangement is effective.

Several examples of the parties cooperative relationship were brought to the court's attention by both parties throughout the trial. The father testified that the parties went to museums and arcades together with the child. Of particular significance is the parents collaboration on educational matters for the child. Both parents participated in the selection of the child's new pre-K program. Together the parents toured the school and thereafter agreed it would be a suitable choice for their child. Both the mother and the father worked cooperatively again in 2012 when choosing a kindergarten for the child. Together, the parents visited a number of schools, considered their options, and then agreed on sending their child to a particular public school. Furthermore, the parties agreed on the child's participation in enrichment programs and on how to equally divide the child's vacation and holiday time. The parties were also able to agree on a schedule which allowed the child to visit his father's family in another state.

The mother testified that even in light of the uncontroverted evidence that the couple has worked together cooperatively, the father continues to request sole custody based upon the allegations that the mother is making unilateral decisions of a financial nature. The mother avers that such inaccurate representations by the father shows that his true motive for this custody dispute is to evade payment of full child support.

The Maternal Grandmother

The father believes that the mother's choice of babysitter, the maternal grandmother, is a poor caretaker for the child. The father testified that the child has begun to have the same obsessive compulsive tendencies as the grandmother regarding germs. The father also testified that he is concerned that the grandmother touches the child inappropriately and simultaneously with this trial he notified the Administration for Children's Service of his concerns.

The mother testified that she does not believe there are any weaknesses in the maternal grandmother's role of caring for the child. The mother explained that the child enjoys spending time with his grandmother and that the father's sexual abuse allegations against the grandmother [*5]are unfounded and an impulsive act on his part.

The attorney for the child proffers the testimony at trial and the exhibits including the forensic report support a joint custody arrangement. The current pendente lite joint custody arrangement is an arrangement that the child is interested in maintaining since he is familiar with the schedule and it gives the child substantial access to each parent.

The Forensic Evaluator

The mother argues that not only is the father's characterization of Dr. Berrill's report inaccurate, but the report in itself is insufficient as Dr. Berrill lacked important information when reaching his conclusions. In fact, the mother points to Dr. Berrill's report and the father's testimony as to his conversations with Dr. Berrill to support her desire for joint custody. In Dr. Berrill's report, he recommends for the current arrangement to continue. It is only when confronted with a situation in which both parties continue to fight over custody, that Dr. Berrill then recommends for sole custody to be awarded to the child's father. Moreover, the mother raises the father's testimony in which he stated he told Dr. Berrill that the current custody arrangement should continue. The mother notes that Dr. Berrill's conclusion that the father should have sole custody if the parents could not agree was made before the mother completed a drug treatment program, obtained a new job, and jointly made major educational decisions for the child. The mother contends that if Dr. Berrill had that information, he probably would have reached a different conclusion.^[FN1] The mother also states that Dr. Berrill lacked information about the father's substance abuse when making his report and she contends that the report may have been very different if Dr. Berrill knew about the father's drug use.

Moreover, the mother expressed that she takes a leading role in regards to medical decisions for the child. The mother testified that she chose the child's dentist and that both parents are happy with the dentist's work despite the father's prior contentions that the dentist was too costly since she was out of network. The mother also stated that the father is not attentive to the child's health needs. The mother testified that the father has previously sent the child to school sick and that even after the child had to be picked up from school, the father still waited several days before taking the child to the doctor. The mother further testified that the father has sent the child to school even when he had vomited the previous evening.

The mother is concerned that the father has not been able to reform his prior negative conduct. The mother posits that the father has not taken steps to better his life as she has. The mother notes that the father has testified inconsistently about his prior marijuana usage. On direct examination, the father stated that he never used drugs, however, he later amended his statement to explain that he used marijuana once while the parties were in Amsterdam. During cross-examination, the father again changed his testimony regarding his drug use and explained [*7]that he used marijuana twice in Amsterdam, two or three times in New York, and two or three times in Virginia. That total the father's use of marijuana to six to eight times. The mother has also testified that the father admitted to her that he was smoking marijuana both during and after their marriage. The mother reasons that the father's misrepresentations of his drug use at trial reveals that he may not be the best choice for sole custodian of the child.

The mother is further concerned that the father permits the child to be in the presence of the father's brother who was convicted of aggravated sexually battery of a minor female. The father represents that at a family gathering the father and child were present with the brother, however at no time was the child ever left unsupervised with father's brother. This Court believes that the husband is acutely aware of his bother's history and has acted appropriately to maintain the safety of the child.

It is well established that the trial court is given great deference to assess the character and credibility of the parties (see Bassuk v. Bassuk, 93 AD3d 664, 939 N.Y.S.2d 863 [2 Dept. 2012 [" Determinations as to custody and visitation are ordinarily a matter for the hearing court, and its determination will not be set aside unless lacking a sound and substantial basis in the record' (Matter of Awan v. Awan, 63 AD3d at 734, 880 N.Y.S.2d 683)."]; see also Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2 Dept., 2010]; citing Peritore v. Peritore, 66 AD3d 750, 888 N.Y.S.2d 72 [2 Dept.,2009]; citing Varga v Varga, 288 AD2d 210, 211, 732 NYS2d 576 [2 Dept., 2001], citing Diaco v. Diaco, 278 AD2d 358, 717 NYS2d 635 [2 Dept., 2000]; see also Ferraro v. Ferraro, 257 AD2d 596, 598, 684 NYS2d 274 [2 Dept., 1999]). In determining a child's custody, the court is to act as parens patriae and must base its determination on the "child's best interests" (see Tropea v. Tropea, 87 NY2d 727, 741 665 N.E.2d 145, 642 NYS2d 575 [1996], see also Opray v. Fitzharris, 95 AD3d 1020, 944 N.Y.S.2d 263 [2 Dept., 2012]; Awan v. Awan, 63 AD3d 733, 880 N.Y.S.2d 683[2 Dept.,2009]. In doing so, the court must make a decision based upon the totality of the circumstances, (see Eschbach v. Eschbach, 56 NY2d 167, 172 436 N.E.2d 1260, 451 NYS2d 658 [1982]), which includes evaluating which parent will best provide for the child's "emotional and intellectual development, the quality of the home environment, and the parental guidance to be provided." (Matter of Louise E.W. v. W. Stephen S., 64 NY2d 946, 947, 477 N.E.2d 1091, 488 NYS2d 637 [1985]; see Plaza v. Plaza, 305 AD2d 607, 759 N.Y.S.2d 368 [2 Dept., 2003]; see also Brown v. Brown, 97 AD3d 568, 947 N.Y.S.2d 179 [2 Dept., 2012] ["The court must consider various factors, ranging from the quality of each parent's home environment and ability to provide for the child financially, emotionally, and intellectually, to the determination of which parent is more likely to foster future contact with the noncustodial parent"]).

Recently, in Matter of Blakeney v. Blakeney, the Appellate Division of the Second Department, held:

The essential consideration in determining custody is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171, 436 N.E.2d 1260, 451 N.Y.S.2d 658; Matter of Carrasquillo v Cora, 60 AD3d 852, 876 N.Y.S.2d 436; Gurewich v Gurewich, 43 AD3d 458, [*8]841 N.Y.S.2d 143). The factors to be considered in making a custody determination include "the parental guidance provided by the custodial parent, each parent's ability to provide for the child's emotional and intellectual development, each parent's ability to provide for the child financially, the relative fitness of each parent, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Craig v. Williams-Craig, 61 AD3d 712, 712, 876 N.Y.S.2d 650; see Matter of McGovern v Lynch, 62 AD3d 712, 879 N.Y.S.2d 490; Matter of Carrasquillo Cora, 60 AD3d at 853).

(Matter of Blakeney v. Blakeney, 99 AD3d 898, 952 N.Y.S.2d 295 [2 Dept., 2012]; lv. to

appeal denied, 2012 NY Slip Op. 93929).

The court notes that both parties bring different strengths and weaknesses to the present parenting arrangement. A significant factor in custody determinations is which parent will assure that the child maintains a meaningful relationship with the other parent (see Matter of Bliss v. Ach, 56 NY2d 995, 998, 439 N.E.2d 349, 453 N.Y.S.2d 633 [1982]; see Opray v. Fitzharris, 95 AD3d 1020, supra). However, that factor does not seem to play a large role in this dispute. Both parents, to their credit, have testified that they believe it is in the child's best interest to have full access to the other parent and are providing a quality home environment for the child and supporting him. Furthermore, the parents' ability to work together to equally share the child's time reveals that neither parent is trying to impede upon the other's access to the child.

In making custody determinations, the court must also consider which parent will provide for the child's emotional and intellectual development (see Mullins v. Riener, 100 AD3d 760, 953 N.Y.S.2d 664 [2 Dept.,2012] ["Factors to be considered in determining the child's best interests include . . . the ability of each parent to provide for the child's emotional and intellectual development . . ."]; see also Matter of Louise v. W. Stephen S., 64 NY2d 946, 947, 477 N.E.2d 1091, 488 NYS2d 637 [1985]; Berrouet v. Greaves, 35 AD3d 460, 461, 825 NYS2d 719 [2 Dept., 2006]). In this case, it is clear to the court that both parents play active, positive roles in the child's intellectual and emotional development. The parents each testified that together they evaluated and chose educational institutions that would be best for the child. They agreed upon a new pre-K program that would better cater to the child's maturity level for it divides classrooms by age group, as opposed to the child's former pre-K program in which he was surrounded by a lot of younger children. Moreover, the parents agreed upon a public school that was close to both parents' residences and that would provide the attention the child requires as a gifted and talented student. Also, each of the parties actively participate in overseeing that the child's school work is completed. In terms of emotional development, the parents agree that it is in the child's best interest for him to be raised by both a mother and a father. Additionally, both parents agree that the child should participate in enrichment programs for they help him socialize and stay active.

The court must also consider what custody situation will promote the child's greatest welfare and happiness. While a child's preference, especially at this young age, is not determinative of the court's decision, it is a factor in the totality of circumstances (see Ebert v. Ebert, 38 NY2d 700, 346 N.E.2d 240, 382 NYS2d 472 [1976], see also Chery v. Richardson, 88 AD3d 788, 930 N.Y.S.2d 663 [2 Dept.,2011] citing Dintruff v. McGreevy, 34 NY2d 887, 888, [*9]316 N.E.2d 716, 359 N.Y.S.2d 281 [1974]; ). This court notes that the child wishes to spend equal time with both his mother and father.^[FN2]

Another significant factor in determining custody is whether the parents are embroiled in a heated custody dispute, such that an award of joint custody would be ineffective. In the seminal case of Braiman v Braiman, (44 NY2d 584, supra) the New York Court of Appeals rejected joint or shared custody where the parties are in bitter conflict and do not agree to such an arrangement. The court stated, "[i]t is understandable, therefore, that joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos." (Id. at 589-90. [internal citations omitted]"). In the present case, however, the parents are not engaged in a vicious custody battle.

This court notes that the forensic evaluator was called as a witness and he identified his forensic evaluation report dated August 8, 2011, and it was admitted into evidence without objection. Thereafter, the matter was adjourned at the request of the parties for purposes of settlement discussions. When the discussions failed and the trial continued neither party recalled the forensic evaluator as a witness. The conclusions and recommendations contained in the forensic report are that current schedule in place seems to be working. The evaluator also indicated in his report that "it is clear that these parents have the ability to put aside their differences and behave in a selfless manner, as adults and true parents.". The forensic report also stated that " . . .[i]f the parties insist, however on pushing the issue of sole custody, it is recommended that the Court consider awarding Mr. Miller custody of the subject child or look at assigning each parent a domain of expertise which would allow them to, unilaterally, make decisions concerning things such as health care, education, etc.".

[W]hile "the value of forensic evaluations of the parents and children has long been recognized" (Matter of Volpe v. Volpe, 61 AD3d 691, 692, 878 N.Y.S.2d 72, quoting Ekstra v. Ekstra, 49 AD3d 594, 595, 854 N.Y.S.2d 439; see Matter of Womack v. Jackson, 30 AD3d 433, 815 N.Y.S.2d 486), the court is not required to accept the recommendation of the court-appointed forensic psychologist (see Bruno v. Bruno, 47 AD3d 606, 849 N.Y.S.2d 598; Matter of Kelly v. Hickman, 44 AD3d 941, 844 N.Y.S.2d 124; Matter of Griffin v. Scott, 303 AD2d 504, 756 N.Y.S.2d 437), as such recommendations are merely additional factors to be considered since they are not determinative and do not usurp the judgment of the trial judge'(Matter of Kozlowski v. Mangialino, 36 AD3d 916, 917, 830 N.Y.S.2d 557)." (Bourne v. Bristow, 66 AD3d 621, 886 N.Y.S.2d 502 [2 Dept.,2009]. The Court herein has not had the benefit of Dr. Berill's testimony notwithstanding that they each had an opportunity to call him back as a witness.

In the case at bar, the parents have a very cooperative relationship and continuously have worked together in order to provide for the child. The parents have been able to divide their time [*10]equally, to make decisions for the child together, and to even spend time together with the child in a friendly manner as a family. Moreover, both parents have testified that they hope that the current arrangement of equal access will continue. In light of these facts, it is clear to the court that an award of joint custody will not be ineffective, instead, such an award will merely continue an arrangement which has worked very well.

In a similar matter, the Second Department permitted the continuation of a separation agreement which provided for joint custody despite the father's motion for sole custody (see Janecka v. Franklin, 131 AD2d 436, 516 N.Y.S.2d 85 [2 Dept., 1987). In Janecka, the court stated, "we must reject the father's contention that the parties have such a severely antagonistic relationship that joint legal custody is insupportable. Although the parties are often hostile, the best interests of the children would not be served by awarding sole custody to the father." Thus, in Janecka, the court continued the joint custody arrangement even though the parties were sometimes hostile. During the pendency of this action, the parties showed themselves to be remarkably adept at cooperating with one another. The joint custody arrangement, pendente lite, is a success. The lack of hostility between the parents in this action and their ability to make major decisions jointly further supports an award of joint custody.

It is clear to this court that as the parties marriage disintegrated they both acted in an inappropriate manner. To both of their credit, they have risen above their disagreements and have conducted themselves in a responsible manner and as two loving parents. Joint custody is feasible in this case, since the parties communicate and work together in parenting the child. They showed an ability to cooperate on matters concerning the child. Accordingly, the parties are awarded joint custody of their son. Each parent shall have access alternating on a weekly basis every Thursday with pick up of the child to occur at the close of school on Thursday.^[FN3] In the event that the child does not have school on a Thursday the child shall be picked up from the parent's home at 3:00 p.m. The parties shall equally share the summer recess and all other school breaks and religious holidays.

The court is concerned that the father is only arguing for full custody in order to evade a final order of child support payments since the father has stated that he wishes for the mother to have full access to the child and that he wishes for the present schedule to continue. His objections to custodial decisions of the mother seem to be concomitant with the economic implications of those decisions while presented in the context of prior drug use. Therefore, the court would like to clarify that even in exactly equal joint custody arrangements, the court must identify a primary custodial parent for purposes of child support (see Bast v. Rossoff, 91 NY2d 723, 697 N.E.2d 1009, 675 N.Y.S.2d 19 [1998]). The Appellate Division, Second Department in Barr v. Cannata has held that

"[u]nder the circumstances of this case, the Supreme Court properly deemed the father to be the noncustodial parent for the purpose of determining temporary support. Here, the temporary custodial arrangement agreed to by the parties essentially split physical custody of the children on an equal basis. Thus, the parent with the higher income, who bears the greater share of the child support obligation, in this case the father, should be deemed the noncustodial parent for the [*11]purpose of support (see Bast v. Rossoff, 91 NY2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009; Powers v. Powers, 37 AD3d 316, 830 N.Y.S.2d 132; Carpenter—Siracusa v. Siracusa, 34 AD3d 611, 824 N.Y.S.2d 662; Matter of Moore v. Shapiro, 30 AD3d 1054, 815 N.Y.S.2d 855).

(Barr v. Cannata, 57 AD3d 813, 870 N.Y.S.2d 120 [2 Dept.,2008])

The court is concerned about the mother's past use of ecstacy and the mothers allegations of domestic violence by the father. However, the mother has taken steps to seek help, has tested negative consistently and recognizes that the use of drugs would have serious consequences. The issue of domestic violence, while clearly inappropriate and will not be sanctioned by this court, appears to be an isolated incident culminating with the end of the parties physical relationship; there is no pattern or repeated event (see Domestic Relations Law § 240; see also Wissink v. Wissink, 301 AD2d 36, 39, 749 N.Y.S.2d 550 [2 Dept., 2002]).

The father's premise for requesting sole custody is based on the mother's prior use of ecstacy and the expenditures by the mother yet it is the mother who has participated in a drug rehabilitation program and takes the dominant role in making plans and finding extra curricular programs for the child without the father's financial contribution. The father failed to substantiate his claim that he was the primary care giver of the child during the marriage or that he was the parent who initiated in the past or now the planning for the child. The sense that the Court is left with is that he cooperates in parenting if it will not cost him too much money and he supports the decisions and plans and even helps implement the plans which are initiated by the mother. Under a best interest analysis each parent herein provides necessary access, each meets the child' s needs and they communicate to resolve issues. Clearly the father does not like his mother-in-law and he and the wife come from very different cultural experiences; but the Court recognizes that the child bonded with the parents and the grandmother. The maternal grandmother testified credibly regarding her care of the child. There is no basis to claim she acted inappropriately based upon the present testimony. Furthermore, this court notes in response to the court ordered investigation conducted by ACS it was recommended that an Article 10 petition not be filed.^[FN4]

The court cautions the parties that a parent should not attempt to create friction or disagreement in order to seek modification of the joint custody decision. If it can be determined that a party intentionally creates situations to interfere with joint custody continuously, it could negatively impact on any future custody determinations.

The Court does not believe that by designating either of these parents "custodial parent" is in the child's best interest. Hopefully, once the Court or parties are able to resolve or decide the financial responsibilities of each of the parents, then the economic strain that appears to impact the father's decisions will be equitably resolved. Each parent understands and appears to respect the access schedule. This is not to say that there may be additional times when they may have disagreements on parenting issues. They appear to be able to work through the issues, putting aside their differences and act in the child's best interest.

The Court understands the mother's desires to spend time with the child when she is not [*12]working. Notwithstanding same, the child is now of school age and consistency and discipline of working within a schedule is of import. Any continuation of a joint custody order is predicated upon the mother and father being drug free.

The Court does not make this decision in a vacuum. The mother and father being joint custodial parents allows them to exercise parental decision making, taking into account both of their prior history. It also allows the mother to continue her demonstrated abilities and organizational strengths which make her an invaluable asset to planning for and guiding this child during his minority.

Settle an interlocutory judgment of custody, on notice together with a copy of this decision with notice of entry within 30 days thereof. A final pretrial conference regarding the financial issues shall be held on January 31, 2013 and trial dates shall be selected. The attorney for the child appearance is not required and is discharged subject to compliance with Rule 36 of the Court.

E N T E R:

JEFFREY S. SUNSHINE

J.S.C