Eschbach v. Eschbach, 436 N.E.2d 1260 (N.Y. 1982). · Go Syfert
Eschbach v. Eschbach, 436 N.E.2d 1260 (N.Y. 1982). Cases Citing This Book View Copy Cite
Quick Summary

A court determines child custody by considering the totality of the circumstances to serve the best interests of the child, as no single factor is determinative.

After a divorce, a mother was granted custody of three daughters via a stipulation. Following a deterioration in the mother's relationship with the children and the daughters' expressed preference to live with their father, the father sought a modification of custody. The trial court awarded custody of all three children to the father, but the Appellate Division modified this to leave the youngest daughter with the mother. On appeal, the court must determine if the youngest child's best interests require a change in custody. Applying the totality of the circumstances, the court held that a prior agreement is not binding and that the child's desire to remain with her siblings is a significant factor.

3,644 citation events (2,711 in the last 25 years) across 26 distinct courts.
Strongest positive: Santo v. Santo (md, 2016-07-11)
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Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Santo v. Santo (4×) also: Cited as authority (quoted)
Md. · 2016 · quote attribution · 4 verbatim quotes · confidence high
no agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interests.
discussed Cited as authority (rule) Matter of Brenda L. M. v. James R. K.
N.Y. App. Div. · 2026 · confidence medium
To the contrary, after reviewing the appropriate factors ( see generally Fox v Fox , 177 AD2d 209, 210-211 [4th Dept 1992]), we conclude that the totality of the circumstances supports the court's determination that it is in the best interests of the children to continue primary physical residence with the father ( see Eschbach v Eschbach , 56 NY2d 167, 174 [1982]; Matter of Marino v Marino , 90 AD3d 1694, 1695 [4th Dept 2011]).
discussed Cited as authority (rule) Matter of McDuffie v. Coleman
N.Y. App. Div. · 2026 · confidence medium
Upon our review of the relevant factors ( see generally Eschbach v Eschbach , 56 NY2d 167, 171-174 [1982]; Fox v Fox , 177 AD2d 209, 210 [4th Dept 1992]), we conclude, contrary to the mother's contention in appeal No. 2, that it is in the child's best interests that the father have sole custody of the child.
discussed Cited as authority (rule) Matter of Glaser v. Dougherty (2×)
N.Y. App. Div. · 2026 · confidence medium
The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child ( see Eschbach v Eschbach , 56 NY2d 167, 171; Matter of Portillo v Arevalo-Narvaez , 246 AD3d 1100).
examined Cited as authority (rule) Barthelemy v. Barthelemy (3×)
N.Y. App. Div. · 2026 · confidence medium
Here, there was a sound and substantial basis for the Supreme Court's determination that changed circumstances justified awarding the defendant sole legal and residential custody of the children and permitting the defendant to relocate with the children to Florida, and that such modification of the judgment of divorce was in the best interests of the children ( see Eschbach v Eschbach , 56 NY2d 167, 173; Matter of Shu Jiao Zhao v Wei Rong , 183 AD3d 895, 896-897; Matter of Rabinowich v Rabinowich , 178 AD3d 1052, 1053).
discussed Cited as authority (rule) Matter of Jillian PP. v. Christopher C. (2×)
N.Y. App. Div. · 2026 · confidence medium
Although courts generally favor frequent and regular visitation with a noncustodial parent ( see Strahl v Strahl , 66 AD2d 571, 574 [1979], affd 49 NY2d 1036 [1980]), the guiding principle in fixing any visitation schedule must be the best interests of the child ( see Eschbach v Eschbach , 56 NY2d 167, 171 [ [*4] 1982]).
discussed Cited as authority (rule) Matter of A.G. (2×)
N.Y. App. Div. · 2026 · confidence medium
Family Court's determination that it was in the best interests of the child to award guardianship to petitioner, who has cared for the child since infancy, is supported by a sound and substantial basis in the record ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]; Matter of Milagros R. v Quazay S.-R. , 202 AD3d 419, 419-420 [1st Dept 2022]).
discussed Cited as authority (rule) Matter of A.S. v. R.S. (2×)
N.Y. App. Div. · 2026 · confidence medium
The court had the benefit of a full evidentiary hearing, and its determination rests on its assessments of the witnesses' demeanor and credibility and there is no basis to disturb the court's credibility determinations ( see Matter of Ivan J. v Felicia V. , 228 AD3d 506, 506 [1st Dept 2024]; Eschbach v Eschbach , 56 NY2d 167, 172-174 [1982]).
discussed Cited as authority (rule) Matter of Melissa MM. v. Barrett LL.
N.Y. App. Div. · 2026 · confidence medium
"Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote [the child's] welfare and happiness' " (<i>Eschbach v <span>[*2]</span>Eschbach</i>, 56 NY2d 167, 171 [1982], quoting Domestic Relations Law § 70). "[T]here are no absolutes in making these determinations" (<i>Eschbach v Eschbach</i>, 56 NY2d at 171 ), but some relevant factors include the quality of the respective home environments, maintaining stability in the child's life, the child's wishes, and the parents' respective abilities t…
discussed Cited as authority (rule) Matter of J.H. v. G.H.
N.Y. App. Div. · 2026 · confidence medium
Accordingly, the court's determination that a change in custody was warranted by the totality of the circumstances and was in the child's best interests had a sound and substantial basis in the record (<i>see Eschbach v Eschbach</i>, 56 NY2d 167, 172 [1982];<i> Matter of Jarvis L. v Jasmine L.L.</i>, 168 AD3d 423 , 423-424 [1st Dept 2019]). </p><p>THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.</p> <p>ENTERED: April 2, 2026</p> </div> <div> <footer> <div> <p>Court Decisions</p> All Court Decisions Official Reports Service Bound Volumes Decisi…
discussed Cited as authority (rule) Matter of Doyle ZZ. v. Muriel YY.
N.Y. Fam. Ct., Tompkins Cty. · 2026 · confidence medium
Turning next to whether it would be in the best interests of the child to modify the prior order, "[a]ny court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote [his or her] welfare and happiness' [internal citations omitted]." Eschbach v. Eschbach , 56 NY2d 167, 171 (NY 1982).
discussed Cited as authority (rule) Matter of Doyle ZZ. v. Muriel YY. (2×)
N.Y. Fam. Ct., Tompkins Cty. · 2026 · confidence medium
Turning next to whether it would be in the best interests of the child to modify the prior order, "[a]ny court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote [his or her] welfare and happiness' [internal citations omitted]." Eschbach v. Eschbach , 56 NY2d 167, 171 (NY 1982).
discussed Cited as authority (rule) Matter of Jeremy S. v. Fransely P. (2×)
N.Y. App. Div. · 2026 · confidence medium
The court's determination that it was in the children's best interest for the mother to produce them for visits with the father at the Manhattan side of the Staten Island Ferry terminal on alternating Fridays is supported by the record ( see Matter of Kaleem U. v Halima S. , 181 AD3d 492 [1st Dept 2020], citing Eschbach v Eschbach , 56 NY2d 167, 173 [1982]).
discussed Cited as authority (rule) Matter of Miguel C. v. Bennie B. (2×)
N.Y. App. Div. · 2026 · confidence medium
Finally, although not determinative, the children's attorney advocated for her clients' position that the court should permit the mother to remain in Georgia with the children, and the court properly considered this factor in reaching its decision ( Eschbach v Eschbach, 56 NY2d 167, 173 [1982]["While not determinative, the child's expressed preference is some indication of what is in the child's best interests," taking into consideration the child's age and maturity]; see also Alaire K.G. , 86 AD3d at 221).
examined Cited as authority (rule) Matter of Johnathan S. (Chantelle S.) (3×)
N.Y. App. Div. · 2026 · confidence medium
A sound and substantial basis in the record supports the court's determination that the child's best interests are met by awarding joint custody to the mother and father ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]).
discussed Cited as authority (rule) Matter of Cory E.L. v. Alexandria O. (2×)
N.Y. App. Div. · 2026 · confidence medium
Furthermore, Family Court's determination that the child's best interests would be served by awarding sole physical and legal custody to the father was based on a thorough assessment of the witnesses' demeanor and credibility and is supported by a sound and substantial basis ( see Eschbach v Eschbach , 56 NY2d 167, 171-173 [1992]; Matter of Carl T. v Yajaira A.C. , 95 AD3d 640, 641-642 [1st Dept 2012]).
discussed Cited as authority (rule) Matter of Angelika R. v. Yolanda K. (2×)
N.Y. App. Div. · 2025 · confidence medium
It failed to address the many other factors which judges must consider in determining what custodial arrangement is in the child's best interests, such as the child's particular needs, each party's ability to provide for the child's emotional and intellectual development, and what arrangement will best promote the child's welfare and happiness ( see Eschbach v Eschbach , 56 NY2d 167, 172-173 [1982]).
discussed Cited as authority (rule) Matter of Kimberly T. v. Rafael E.M. (2×)
N.Y. App. Div. · 2025 · confidence medium
Moreover, Family Court's allocation of the transportation costs to facilitate the mother's parenting time with the child was in the child's best interests, which is the overarching consideration in questions of child custody ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]; Lo Presti v Lo Presti , 40 NY2d 522, 527 [1976]; see also Matter of Maranda WW. v Michael XX. , 219 AD3d 1590, 1594 [3d Dept 2023]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
examined Cited as authority (rule) Lee v. Lee (5×)
N.Y. App. Div. · 2025 · confidence medium
Although this Court's authority in custody matters is as broad as that of the trial court, the trial court's findings and determination are accorded great deference on appeal ( Matter of Mildred S.G. v Mark G. , 62 AD3d 460 , 460 [1st Dept 2009]), since that court had the opportunity to assess the witnesses' demeanor and credibility ( see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; Matter of Shirley D.-A. v Gregory D.
examined Cited as authority (rule) Matter of Emmanuel A. v. Evelyn R.M.G. (3×)
N.Y. App. Div. · 2025 · confidence medium
Family Court's determination of the custody and visitation issues has a sound and substantial basis in the record, and the mother has failed to identify any grounds to disturb the determination ( see Eschbach v Eschbach , 56 NY2d 167, 173-174 [1982]).
discussed Cited as authority (rule) Matter of Brown v. Dimmie
N.Y. App. Div. · 2025 · confidence medium
The court's paramount concern in a custody dispute is to determine, under the totality [*2]of the circumstances, what is in the best interests of the child ( see Eschbach v Eschbach , 56 NY2d 167, 171-172; Matter of Steward v Okon , 238 AD3d 1055, 1056).
discussed Cited as authority (rule) Matter of Sarah H. v. Jaiquon W.
N.Y. Fam. Ct., Tompkins Cty. · 2025 · confidence medium
Turning now to whether it would be in the best interests of the child to modify the prior order, "[a]ny court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote [his or her] welfare and happiness' [internal citations omitted]." Eschbach v. Eschbach , 56 NY2d 167, 171 (NY 1982).
discussed Cited as authority (rule) Matter of Darren M.J. v. Sandra J.R. (2×)
N.Y. App. Div. · 2025 · confidence medium
Furthermore, there was a sound and substantial basis for Family Court's determination that it was in the best interests of the children to modify the parties' custody arrangement to award sole physical custody and final decision-making authority to the mother ( see Eschbach v Eschbach , 56 NY2d 167, 172-173 [1982]).
discussed Cited as authority (rule) Sandiaes v. Sandiaes (2×)
N.Y. App. Div. · 2025 · confidence medium
In assessing questions of child custody, courts must "make every effort to determine what is for the best interest of the child, and what will best promote [the child's] welfare and happiness" ( Eschbach v Eschbach , 56 NY2d 167, 171 [internal quotation marks omitted]; see S.L. v J.R. , 27 NY3d 558, 562 ).
discussed Cited as authority (rule) Matter of Lulu J.S. v. Rahmel H.H. (2×)
N.Y. App. Div. · 2025 · confidence medium
Family Court's determination that it was in the best interests of the child to modify the custody arrangement and grant sole legal and physical custody to the mother has a sound and substantial basis in the record ( see Eschbach v Eschbach , 56 NY2d 167, 172-173 [1982]).
discussed Cited as authority (rule) Matter of Noemi A.T.R. v. Fabion A.R. (2×)
N.Y. App. Div. · 2025 · confidence medium
Sound and substantial evidence supports the Family Court's determination, issued after a full evidentiary hearing at which both parents testified, that it was in the child's best interests to grant the mother's petition for sole legal and residential custody ( see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; Matter of Kimberly J. v Benjamin G. , 227 AD3d 471 , 472 [1st Dept 2024]).
examined Cited as authority (rule) Matter of Thayer v. Darling (3×) also: Cited "see"
N.Y. App. Div. · 2025 · confidence medium
We conclude that there is a sound and substantial basis in the record for the court's custody determination at issue here ( see generally Eschbach v Eschbach , 56 NY2d 167, 171-174 [1982]). "[I]nasmuch as this case involves an initial custody determination, it cannot properly be characterized as a relocation case to which the application of the factors set forth in Matter of Tropea v Tropea ( 87 NY2d 727, 740-741 [1996]) need be strictly applied . . .
discussed Cited as authority (rule) Matter of Christine EE. v. David FF.
N.Y. App. Div. · 2025 · confidence medium
The question turns to whether Family Court fashioned a custodial arrangement in the children's best interests ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]) — a consideration that takes into account a variety of factors "including the quality of the home environment of each parent, the need for stability in the children's lives, the past performance of the parents and their ability to provide for the children, the wishes of the children and the degree to which each parent is willing to foster a positive relationship between the children and the other parent" ( Matter of Jason VV. v Bri…
discussed Cited as authority (rule) Matter of Tawanna W. v. Kamella T. (2×)
N.Y. App. Div. · 2024 · confidence medium
The totality of the circumstances demonstrated that the award of guardianship to the grandmother was in the best interests of the child ( see Family Ct Act § 1055-b[a][ii]; Eschbach v Eschbach , 56 NY2d 167, 171 [1982]).
discussed Cited as authority (rule) M.R. v. E.R.
N.Y. Sup. Ct., Westchester Cty. · 2024 · confidence medium
In custody determinations " . . . the findings of the nisi prius court must be accorded the greatest respect" ( Eschbach v Eschbach , 56 NY2d 167, 173 [1982], quoting, Matter of Irene O. , 38 NY2d 776 [1975]).
discussed Cited as authority (rule) Matter of Leslie QQ. v. Daniel RR.
N.Y. App. Div. · 2024 · confidence medium
Under the circumstances, we find that a sound and substantial basis exists in the record to support Family Court's determination that it was in the daughter's best interests to award the mother sole legal custody ( see Eschbach v Eschbach , 56 NY2d 167, 172-173 [1982]; Brenna EE. v Andrew DD. , 214 AD3d 1039 , 1041 [3d Dept 2023]; Matter of Steven U. v Alisha V. , 209 AD3d 1184 , 1186 [3d Dept 2022]).
discussed Cited as authority (rule) Matter of Richard I. v. Leyda D. (2×)
N.Y. App. Div. · 2024 · confidence medium
The court relied on the father's testimony, the child's hospital records, and evidence of the child's emotional and psychological issues, which the mother was unwilling to address, as well as evidence that the mother's actions were having a negative effect on the child's well-being ( see Matter of Frank M. v Donna W. , 44 AD3d 495, 495 [1st Dept 2007]; Eschbach v Eschbach , 56 NY2d 167, 171-172 [1982]).
discussed Cited as authority (rule) Matter of Karl R. v. Julianne M. R. (2×)
N.Y. App. Div. · 2024 · confidence medium
Under the circumstances, we find that there is a sound and substantial basis in the record for the court's determination that awarding custody to the father was in the child's best interests, and we decline to disturb its custody award ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]).
discussed Cited as authority (rule) Matter of Muhamede J.D. v. Shanie A.M. (2×)
N.Y. App. Div. · 2024 · confidence medium
In determining issues of custody, a court must consider all relevant factors that bear on the best interests of the child ( see Eschbach v Eschbach , 56 NY2d 167, 172 [1982]).
cited Cited as authority (rule) Matter of Tyra H. v. Tariq M.
N.Y. App. Div. · 2024 · confidence medium
Family Court's determination that both parents were credible but that the father provided a more reliable account is entitled to deference ( see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]).
discussed Cited as authority (rule) Matter of Jermaine N. v. Tatiana T.
N.Y. App. Div. · 2024 · confidence medium
The court's determination that an award of joint custody to the parents with primary physical custody to the father was in the best interest of the children is supported by a sound and substantial basis in the record ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]; Matter of David J.B. v Monique H. , 52 AD3d 414, 415 [1st Dept 2008]).
discussed Cited as authority (rule) Matter of Michael L. v. Lillian G.
N.Y. App. Div. · 2024 · confidence medium
Family Court's conclusion that an award of joint legal and physical custody to the parents was in the best interests of the child, and its denial of each parent's request for sole legal and primary physical custody, has a sound and substantial basis in the record ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]; Rubin v Della Salla , 107 AD3d 60, 64 [1st Dept 2013]).
discussed Cited as authority (rule) Matter of Lillette T. v. Simone G.
N.Y. App. Div. · 2024 · confidence medium
There is no basis to disturb Family Court's best interests determinations ( see Eschbach v Eschbach , 56 NY2d 167, 173-174 [1982]; Matter of David H. v Khalima H. , 111 AD3d 544 , 545 [1st Dept 2013], lv dismissed 22 NY3d 1149 [2014]).
discussed Cited as authority (rule) Matter of Joanna PP. v. Ohad PP.
N.Y. App. Div. · 2024 · confidence medium
A custodial determination depends to a great extent upon an assessment of the testimony, character and sincerity of the parties ( see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; Matter of Frankie CC. v Rachel CC. , 225 AD3d 1112 , 1115 [3d Dept 2024]).
discussed Cited as authority (rule) Matter of Andrew I. v. Lizbeth H.
N.Y. App. Div. · 2024 · confidence medium
Finally, although on appeal one of the children has a differing position on which parent should have physical custody, the record does not offer any overwhelming justification or indication that it would be in the best interests to separate them ( see Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; cf. Matter of Carla UU. v Cameron UU. , 227 AD3d 1257 , 1260 [3d Dept 2024]).
discussed Cited as authority (rule) Matter of Alexander K. v. Jaheria L.
N.Y. App. Div. · 2024 · confidence medium
Although "a parent's decision to reside in a distant locale is a very important factor among the constellation of factors to be considered in arriving at a best interests determination" ( Matter of Streid v Streid , 46 AD3d 1155 , 1156 [3d Dept 2007] [internal quotation marks, brackets and citation omitted]; see Matter of Shane FF. v Alicia GG. , 199 AD3d at 1265 ; Matter of Eldad LL. v Dannai MM. , 155 AD3d 1336, 1339 [3d Dept 2017]), other pertinent circumstances must be considered ( see Matter of Aden HH. v Charish GG. , 226 AD3d at 1110; Matter of Shane FF. v Alicia GG. , 199 AD3d at 1265 …
discussed Cited as authority (rule) Matter of Jacob L. v. Heather L.
N.Y. Fam. Ct., Tompkins Cty. · 2024 · confidence medium
"Any court in considering questions of child custody must make every effort to determine 'what is for the best interest of the child, and what will best promote [his or her] welfare and happiness' [internal citations omitted]." Eschbach v. Eschbach , 56 NY2d 167, 171 (NY 1982).
discussed Cited as authority (rule) Matter of AL.C.
N.Y. App. Div. · 2024 · confidence medium
It sets out the permanency goals, placement arrangements and visitation plans for the children "until the completion of the next permanency hearing or pending further orders of this Court." [FN1] In analyzing the order, we defer as we must to the factual determinations of the Family Court judge, who had the opportunity to observe and listen to the witnesses ( Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; Matter of Kimberly J. v Benjamin G ., 227 AD3d 471 [1st Dept 2024]).
discussed Cited as authority (rule) Matter of AL.C.
N.Y. App. Div. · 2024 · confidence medium
It sets out the permanency goals, placement arrangements and visitation plans for the children "until the completion of the next permanency hearing or pending further orders of this Court." [FN1] In analyzing the order, we defer as we must to the factual determinations of the Family Court judge, who had the opportunity to observe and listen to the witnesses ( Eschbach v Eschbach , 56 NY2d 167, 173 [1982]; Matter of Kimberly J. v Benjamin G ., 227 AD3d 471 [1st Dept 2024]).
discussed Cited as authority (rule) Matter of Failing v. Clark
N.Y. App. Div. · 2024 · confidence medium
Upon our review of the record and the relevant factors ( see generally Eschbach v Eschbach , 56 NY2d 167, 171-174 [1982]; Fox v Fox , 177 AD2d 209, 210 [4th Dept 1992]), we conclude that the award of sole legal custody and primary physical residence to the mother and supervised visitation to the father is in the best interests of the child.
discussed Cited as authority (rule) Matter of Rawleigh v. Gallt
N.Y. App. Div. · 2024 · confidence medium
Upon our review of the relevant factors ( see generally Eschbach v Eschbach , 56 NY2d 167, 171-174 [1982]; Fox v Fox , 177 AD2d 209, 210 [4th Dept 1992]), we conclude that it is in the child's best interests that the mother retain primary physical custody of the child.
discussed Cited as authority (rule) Matter of Ivan J. v. Felicia V.
N.Y. App. Div. · 2024 · confidence medium
There is a sound and substantial basis in the record for the court's determination that S.'s best interest would be served by awarding primary physical custody to the mother ( see Eschbach v Eschbach , 56 NY2d 167, 171-172 [1982]; Matter of David H. v Khalima H. , 111 AD3d 544 , 545 [1st Dept 2013], lv dismissed 22 NY3d 1149 [2014]).
discussed Cited as authority (rule) Matter of Osborne v. Tulwits
N.Y. App. Div. · 2024 · confidence medium
"Although, as a general rule, the custody determination of the trial court is entitled to great deference ( see Eschbach v Eschbach , 56 NY2d 167, 173-174 [1982]), '[s]uch deference is not warranted . . . where the custody determination lacks a sound and substantial basis in the record' " ( Cole , 107 AD3d at 1511).
discussed Cited as authority (rule) Matter of Kimberly J. v. Benjamin G.
N.Y. App. Div. · 2024 · confidence medium
The court had the benefit of a full evidentiary hearing at which it had the opportunity to hear the testimony of both parents and to assess their demeanor and credibility ( see Eschbach v Eschbach , 56 NY2d 167, 172 [1982]; see Matter of Carmen G. v Rogelio D. , 100 AD3d 568 [1st Dept 2012]).
discussed Cited as authority (rule) Matter of Paul D. v. Margarita O.
N.Y. App. Div. · 2024 · confidence medium
The court's determination that the award of sole legal and physical custody to the father would serve the best interests of the child has a sound and substantial basis in the record ( see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]; Domestic Relations Law § 70).
Retrieving the full opinion text from the archive…
Donald Eschbach
v.
Rita Eschbach
New York Court of Appeals.
May 13, 1982.
436 N.E.2d 1260
1982 N.Y. LEXIS 3326
Herbert J. Malach and Robert G. Schneider for appellant., Edward D. Loughman, Jr., for respondent.
Jasen.
Cited by 2,904 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 58%
Citer courts: Court of Appeals of Maryland (2)

OPINION OF THE COURT

Jasen, J.

The question to be resolved on this appeal is whether custody of the youngest child of the parties herein should be changed, along with that of her two older sisters, from her mother to her father.

Plaintiff, Donald Eschbach, and defendant, Rita Eschbach, were married on November 23, 1963. Donald Eschbach was granted a divorce on May 28,1979 on the basis of the couple having lived separate and apart pursuant to a separation agreement for one year. (Domestic Relations Law, § 170, subd [5].) Custody of the three daughters of the marriage was granted to their mother pursuant to an oral stipulation of the parties entered in the minutes of the court at the inquest hearing held on January 16,1979. The stipulation, which also provided visitation rights for the children’s father, was incorporated but not merged in the judgment of divorce.

Events over the course of the next year indicated a progressive deterioration in the mother’s relationship with her daughters. On several occasions, the two older girls, Karen and Ellen, ran away from defendant’s home, either to their father’s residence or to friends’ homes. The record also reveals that the mother refused to allow the girls to participate in extracurricular activities at school and imposed severe limitations on what activities they could[*170] participate in and with whom they were allowed to associate. Concerned that the children were being raised in an unhealthy atmosphere which was affecting their emotional and psychological development, the father commenced this action seeking a modification of the judgment of divorce to the extent of awarding him custody of his three daughters.

The trial court took testimony from both parents, representatives of the school, and the two older daughters. Although the youngest daughter, Laura, did not testify, she was interviewed by the court in camera, and a transcript of that proceeding is included in the record before us. Additionally, a report was prepared for the court by a probation officer who had interviewed the parties.

The trial court found that the mother’s unreasonable demands and restrictions were jeopardizing the older daughters’ emotional and intellectual -development and that there was a total breakdown of communication between the older children and their mother. Furthermore, the court found that the strong prefrence to live with their father expressed by these children, who were' age 16 and 14 at the time of the hearing, should be given consideration.

Although Laura, who was 10 at the time of the hearing, had not expressed a similarly strong preference to live with her father rather than her mother, the court recognized her strong desire to remain with her sisters. After considering all the factors presented, the court found that her best interests would be served by continuing her close relationship with her sisters and that a change of custody to her father was necessary under these circumstances.

On appeal, the Appellate Division agreed that “the antagonism [of the older] children * * * toward defendant and their strong preference to live with plaintiff” (83 AD2d 845, 846) required a change in custody for Karen and Ellen. That court, however, modified the judgment and ordered that Laura’s custody remain with the mother because there was “nothing to suggest that defendant has been anything but a fit parent toward her.” (Id.)

On this appeal, the father seeks custody of Laura. The mother has not sought a further appeal from that part of the order which affirmed the judgment awarding custody[*171] of Karen and Ellen to the plaintiff. The question on this appeal is thus limited to which parent should have custody of Laura. We agree with the trial court that Laura’s best interests require a change in her custody from her mother to her father.

Any court in considering questions of child custody must make every effort to determine “what is for the best interest of the child, and what will best promote its welfare and happiness”. (Domestic Relations Law, § 70; Matter of Ebert v Ebert, 38 NY2d 700, 702; Obey v Degling, 37 NY2d 768, 769; Matter of Lincoln v Lincoln, 24 NY2d 270; Bistany v Bistany, 66 AD2d 1026; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 NY2d 705; Matter of Saunders v Saunders, 60 AD2d 701.) As we have recently stated, there are no absolutes in making these determinations; rather, there are policies designed not to bind the courts, but to guide them in determining what is in the best interests of the child. (Friederwitzer v Friederwitzer, 55 NY2d 89, 93-95.)

Where the parties have entered into an agreement as to which parent should have custody, we have stated that “[pjriority, not as an absolute but as a weighty factor, should, in the absence of extraordinary circumstances, be accorded” to that agreement. (Matter of Nehra v Uhlar, 43 NY2d 242, 251.) This priority is afforded the first determination of custody in the belief the stability this policy will assure in the child’s life is in the child’s best interests. (Friederwitzer v Friederwitzer, supra, at p 94; Corradino v Corradino, 48 NY2d 894; Matter of Nehra v Uhlar, supra; Obey v Degling, supra; Dintruff v McGreevy, 34 NY2d 887; Aberbach v Aberbach, 33 NY2d 592; People ex rel. Selbert v Selbert, 60 AD2d 692.) But as this court noted in Friederwitzer, “[n]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interests (People ex rel. Wasserberger v Wasserberger, 42 AD2d 93, 95, affd on opn below 34 NY2d 660).” (Friederwitzer v Friederwitzer, supra, at p 95.) Thus, an agreement between the parties is but one factor to be weighed by the court in deciding whether a change of custody is warranted.

[*172] The weight to be given the existence of a prior agreement depends on whether the prior disposition resulted from a full hearing by a trial court or was merely incorporated in the court’s judgment pursuant to an uncontested stipulation. (Friederwitzer v Friederwitzer, supra, at pp 94-95.) This is particularly true where, as in this case, the rules of the court require that the decree specify that “as to support, custody and visitation, no such agreement or stipulation is binding” (22 NYCRR 699.9 [f] [4]) and that the court retains jurisdiction for the purpose of making such further custody decree “as it finds appropriate under the circumstances existing at the time application for that purpose is made to it”. (22 NYCRR 699.9, Approved Forms, J13.) Since the court was not bound by the existence of the prior agreement, it has the discretion to order custody changed “when the totality of circumstances, including the existence of the prior award, warrants its doing so in the best interests of the child.” (Friederwitzer v Friederwitzer, supra, at p 96.)

Primary among those circumstances to be considered is the quality of the home environment and the parental guidance the custodial parent provides for the child. (Matter of Ebert v Ebert, 38 NY2d 700, 702, supra; Bistany v Bistany, 66 AD2d 1026, supra; Sandman v Sandman, 64 AD2d 698, mot for lv to app den 46 NY2d 705, supra; Matter of Saunders v Saunders, 60 AD2d 701, supra.) While concerns such as the financial status and the ability of each parent to provide for the child should not be overlooked by the court, an equally valid concern is the ability of each parent to provide for the child’s emotional and intellectual development. (Sandman v Sandman, supra; Porges v Porges, 63 AD2d 712; Matter of Saunders v Saunders, supra.)

In determining whether the custodial parent can continue to provide for the child’s various needs, the court must be cognizant of the individual needs of each child. It is, of course, entirely possible that a circumstance such as a total breakdown in communication between a parent and child that would require a change in custody would be applicable only as to the best interests of one of several children. (Bistany v Bistany, supra; Sandman v Sandman, [*173] supra; Porges v Porges, supra.) To this end, it is important for the court to consider the desires of each child. But again, this is but one factor to be considered; as with the other factors, the child’s desires should not be considered determinative. (Matter of Ebert v Ebert, supra, at p 702; Obey v Degling, 37 NY2d 768, 770, supra; Dintruff v McGreevy, 34 NY2d 887, 888, supra; Sandman v Sandman, supra.) While not determinative, the child’s expressed preference is some indication of what is in the child’s best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child. (See, e.g., Obey v Degling, supra, at p 770; Dintruff v McGreevy, supra, at p 888.)

Finally, this court has long recognized that it is often in the child’s best interests to continue to live with his siblings. While this, too, is not an absolute, the stability and companionship to be gained from keeping the children together is an important factor for the court to consider. “Close familial relationships are much to be encouraged.” (Matter of Ebert v Ebert, supra, at p 704.) “Young brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful.” (Obey v Degling, supra, at p 771; Matter of Gunderud v Gunderud, 75 AD2d 691; Bistany v Bistany, supra.)

The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary. “In matters of this character ‘the findings of the nisi prius court must be accorded the greatest respect’ (Matter of Irene O., 38 NY2d 776, 777)” (Matter of Ebert v Ebert, supra, at p 703; Bistany v Bistany, supra). Appellate courts should be reluctant to substitute their own evaluation of these subjective factors for that of the nisi prius court (People ex rel. Portnoy v Strasser, 303 NY 539, 542; Bistany v Bistany, supra), and if they do, should articulate[*174] the reasons for so doing. Similarly, the existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances. (Friederwitzer v Friederwitzer, 55 NY2d 89, supra.)

Turning then to the facts of this case, we hold that the determination of the trial court that the totality of the circumstances warrants awarding custody of Laura to her father conforms to the weight of the evidence. The record indicates that although the mother is not an unfit parent for Laura, she is, under all the circumstances present here, the less fit parent. Thus, the trial court was not bound by the stipulation of the parties-, but was free to, and indeed required to, review the totality of the circumstances to determine what would be in Laura’s best interests. In doing so, the Trial Judge weighed the testimony of all the parties, including Laura, and considered the testimony of school officials and reports from a probation officer appointed by the court. The court made no specific finding that defendant was an unfit mother for Laura, but a finding that the mother was the less fit parent is implicit in its order to change custody and is supported by the record. Additionally, the trial court, while noting Laura’s ambivalence as to which parent she would prefer to live with, gave significant weight to her strong desire to remain with her older sisters. The record indicates that all relevant factors, including the mother’s ability to cope with raising children as they approach maturity and the father’s desire to- provide a fuller and more enriched environment for his daughters were considered. It is abundantly clear from the record that the trial court, in this case, made a careful and studied review of all the relevant factors. As the determination of the nisi prius court, we believe this holding should be accorded great deference on review.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the judgment of Supreme Court, Westchester County, reinstated.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.