Case Details

In a custody decision, a New York appellate court affirmed a lower court’s decision to grant a mother sole custody of the parties’ child.  In this particular case, the parties were divorced in 2001, and for several years thereafter shared joint custody of their daughter.  The mother had primary physical custody subject to liberal unsupervised visitation with the father. The mother moved for sole custody, requesting that the father’s visitation be suspended, or alternatively, that it be supervised.  The father cross-moved for sole legal and physical custody, claiming that the mother was interfering with his visitation.

Following an extensive and protracted period of litigation, the court granted the mother sole legal and physical custody of the child, and ordered the father to attend reunification therapy.  The court also ordered the father’s visitation to be supervised.

The Appeal

The father appealed; however, the Appellate Court affirmed the lower court’s ruling.  In support of its decision, the Court explained that under New York law, in determining whether a custody arrangement should be modified, the paramount issue is whether, under the totality of the circumstances, a modification of custody is in the best interests of the child.  Cuccurullo v. Cuccurullo, 21 AD3d 983, 984, 801 NYS2d 360 (2005).

In addition to considering the factors considered in any other custody determination, the court must also take into account the stability and continuity afforded by maintaining the present arrangement.  Gonzalez v. Gonzalez, 17 AD3d 635, 636, 794 NYS2d 103 (2005).  When there is no indication that a change of custody will result in significantly enhancing the child’s welfare, it is generally considered in the child’s best interests not to disrupt his or her life. Matter of Salvati v. Salvati, 221 AD2d 541, 543, 633 NYS2d 819 (1995).

From a factual standpoint, the Court found that the child had been living with the mother for eight years, that the child was thriving under the mother’s care and that the daughter preferred to continue living with the mother.  The Court also noted that the father presented no evidence to suggest that he was a more fit parent, or that he would be able to provide a better home environment for the child.  Although the Court took notice of evidence suggesting the mother had interfered with the father’s visitation, it ultimately concluded that the interference did not warrant a change in custody.

Should you have any questions regarding custody related matters, or divorce proceedings in general, please feel free to contact managing partner Joseph Maya of Maya Murphy, P.C.  He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at