Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448 (N.Y. App. Div. 2007). · Go Syfert
Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448 (N.Y. App. Div. 2007). Cases Citing This Book View Copy Cite
66 citation events (66 in the last 25 years) across 1 distinct court.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Billett v. Gordon
N.Y. App. Div. · 2026 · confidence medium
Although the court did not specify the factors it relied on in conducting its best interests analysis ( see Matter of Howell v Lovell , 103 AD3d 1229, 1231 [4th Dept 2013]), "[o]ur authority in determinations of custody is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; see Howell , 103 AD3d at 1231 ).
discussed Cited as authority (rule) Matter of Bailey v. Bailey
N.Y. App. Div. · 2023 · confidence medium
Although the court did not specify the factors it relied on in conducting its best interests analysis ( see Matter of Howell v Lovell , 103 AD3d 1229, 1231 [4th Dept 2013]), "[o]ur authority in determinations of custody [and visitation] is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child[ren]" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; see also Matter of Butler v Ewers , 78 AD3d 1667,…
discussed Cited as authority (rule) Matter of Nowlan v. Cunningham
N.Y. App. Div. · 2022 · confidence medium
Although the court did not specify the factors it relied on in conducting its best interests analysis ( see Matter of Howell v Lovell , 103 AD3d 1229, 1231 [4th Dept 2013]), "[o]ur authority in determinations of custody [and visitation] is as broad as that of Family Court . . . and where, as [*2]here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; see Howell , 103 AD3d at 1231 ).
discussed Cited as authority (rule) Matter of Conrad v. Conrad
N.Y. App. Div. · 2022 · confidence medium
We thus conclude that the child's best interests will be served by extending the father's weekend parenting time until Monday morning and granting him four weeks of parenting time during the summer, with no more than two consecutive weeks at a time ( see generally Matter of Manioci v Schreiber , — AD3d &mdash, 2022 NY Slip Op 06609 [4th Dept 2022]; Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; Oliver , 284 AD2d at 935 ).
discussed Cited as authority (rule) Matter of Manioci v. Schreiber
N.Y. App. Div. · 2022 · confidence medium
Although the mother correctly contends that the court did not specify the factors that it relied upon in conducting its best interests analysis ( see Matter of Howell v Lovell , 103 AD3d 1229, 1231 [4th Dept 2013]), "[o]ur authority in determinations of custody is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child" ( Matter of Bryan K.B. v Destiny S.B ., 43 AD3d 1448, 1450 [4th Dept 2007]; see Howell , 103 AD3d at 1231…
cited Cited as authority (rule) Matter of Johnson v. Johnson
N.Y. App. Div. · 2022 · confidence medium
Moreover, "[o]ur authority in determinations of custody is as broad as that of Family Court" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; see Matter of Louise E.S. v W.
discussed Cited as authority (rule) Matter of Akol v. Afet
N.Y. App. Div. · 2022 · confidence medium
Although the court did not specify the factors it relied on in conducting its best interests analysis ( see Matter of Howell v Lovell , 103 AD3d 1229, 1231 [4th Dept 2013]), "[o]ur authority in determinations of custody [and visitation] is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; see Howell , 103 AD3d at 1231 ; see also Matter of But…
discussed Cited as authority (rule) Matter of Alwardt v. Connolly
N.Y. App. Div. · 2020 · confidence medium
It is well settled that "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Marino v Marino , 90 AD3d 1694 , 1695 [4th Dept 2011] [internal quotation marks omitted]). " Such deference is not warranted, however, where the custody determination lacks a sound and substantial basis in the record' " ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1449 [4th Dept 20…
discussed Cited as authority (rule) Matter of Ballard v. Piston
N.Y. App. Div. · 2019 · confidence medium
It is well settled that "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Bryan K.B. v Destiny S.B. [appeal No. 1], 43 AD3d 1448, 1449 [4th Dept 2007] [internal quotation marks omitted]; see Graves v Huff [appeal No. 2], 169 AD3d 1476 , 1476 [4th Dept 2019]).
discussed Cited as authority (rule) Matter of Edmonds v. Lewis
N.Y. App. Div. · 2019 · confidence medium
Although the court did not specify the factors it relied on in conducting its best interests analysis ( see Matter of Howell v Lovell , 103 AD3d 1229, 1231 [4th Dept 2013]), "[o]ur authority in determinations of custody is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]; see Howell, 103 AD3d at 1231; see also Matter of Butler v Ewers , 78 AD…
discussed Cited as authority (rule) Matter of Nordee v. Nordee
N.Y. App. Div. · 2019 · confidence medium
It is well settled that "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1449 [4th Dept 2007] [internal quotation marks omitted]; see Eschbach v Eschbach , 56 NY2d 167, 173-174 [1982]).
discussed Cited as authority (rule) Matter of Wojciulewicz v. McCauley (2×) also: Cited "see"
N.Y. App. Div. · 2018 · confidence medium
Although we agree with the father that Family Court failed to set forth the "facts it deem[ed] essential" for its custody determination (CPLR 4213 [b]; see Matter of Graci v Graci , 187 AD2d 970, 971 [4th Dept 1992]), the record is sufficient for us to make our own factual findings "in the interests of judicial economy and the well-being of the child[ren]" ( Matter of Brandon v King , 137 AD3d 1727, 1727-1728 [4th Dept 2016]; see generally Matter of Howell v Lovell, 103 AD3d 1229, 1231 [4th Dept 2013]; Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1450 [4th Dept 2007]).
discussed Cited as authority (rule) Matter of Jones v. Jamieson (2×) also: Cited "see"
N.Y. App. Div. · 2018 · confidence medium
It is well settled that a "court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Bryan K.B. v Destiny S.B. , 43 AD3d 1448, 1449 [4th Dept 2007] [internal quotation marks omitted]).
discussed Cited as authority (rule) Matter of Drajem v. Carr
N.Y. App. Div. · 2018 · confidence medium
Initially, we note that the mother does not dispute that the continued deterioration of the parties' relationship and their inability to coparent constitutes a significant change in circumstances warranting an inquiry into whether a change in custody is in the child's best interests ( see Werner v Kenney , 142 AD3d 1351, 1351 [4th Dept 2016]; Matter of Ladd v Krupp , 136 AD3d 1391, 1392 [4th Dept 2016]). "[A] court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great we…
discussed Cited as authority (rule) Matter of Braga v. Bell
N.Y. App. Div. · 2017 · confidence medium
Indeed, “[o]ur authority in determinations of custody is as broad as that of Family Court” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Cole v Nofri, 107 AD3d 1510 , 1511-1512 [2013], appeal dismissed and lv denied 22 NY3d 1083 [2014]).
discussed Cited as authority (rule) Sloma v. Sloma
N.Y. App. Div. · 2017 · confidence medium
“In making a determination regarding custody, ‘numerous factors are to be considered, including the continuity and stability of the existing custodial arrangement, the quality of the child’s home environment and that of the parent seeking custody, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, and the individual needs and expressed desires of the child’ ” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Fox v Fox, 177 AD2d 209, 210 [1992]).
discussed Cited as authority (rule) Sloma v. Sloma
N.Y. App. Div. · 2017 · confidence medium
“In making a determination regarding custody, ‘numerous factors are to be considered, including the continuity and stability of the existing custodial arrangement, the quality of the child’s home environment and that of the parent seeking custody, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, and the individual needs and expressed desires of the child’ ” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Fox v Fox, 177 AD2d 209, 210 [1992]).
discussed Cited as authority (rule) SHERIDAN, KELLY G. v. SHERIDAN, DAVID E.
N.Y. App. Div. · 2015 · confidence medium
In making that determination “numerous factors are to be considered, including the continuity and stability of the existing custodial arrangement, the quality of the child’s home environment and that of the parent seeking custody, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, and the individual needs and expressed desires of the child” (Bryan K.B., 43 AD3d at 1450 [internal quotation marks omitted]; see Eschbach, 56 NY2d at 171-173 ).
discussed Cited as authority (rule) Sheridan v. Sheridan (2×)
N.Y. App. Div. · 2015 · confidence medium
We respectfully dissent in appeal No. 1 because, in our view, Supreme Court’s determination awarding sole legal and physical custody of the parties’ child to plaintiff mother lacks a sound and substantial basis in the record (see Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]).
discussed Cited as authority (rule) Sheridan v. Sheridan (2×)
N.Y. App. Div. · 2015 · confidence medium
We respectfully dissent in appeal No. 1 because, in our view, Supreme Court’s determination awarding sole legal and physical custody of the parties’ child to plaintiff mother lacks a sound and substantial basis in the record (see Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]).
discussed Cited as authority (rule) LAMAY, SCOTT J. v. STAVES, KIMBERLY R.
N.Y. App. Div. · 2015 · confidence medium
Inasmuch as no other factor strongly favors either party, and *1486 the court’s custody determination, which is “based upon [its] first-hand assessment of the credibility of the witnesses,” has a sound and substantial basis in the record, we conclude that it should not be disturbed (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007] [internal quotation marks omitted]).
discussed Cited as authority (rule) Caughill v. Caughill
N.Y. App. Div. · 2015 · confidence medium
Even assuming, arguendo, that the JHO’s prehearing statement, i.e., that she saw no other outcome for the case than to award custody to the mother, was improper, we note that “[o]ur authority in determinations of custody is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination ... , we will do so in the interests of judicial economy and the well-being of the child” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Howell v Lovell, 103 AD3d 1229, 1231 [2013]).
discussed Cited as authority (rule) Maracle v. Deschamps
N.Y. App. Div. · 2015 · confidence medium
Although the mother is correct that, in seeking to change an existing custody arrangement that is based upon a stipulation, the father was required to show a change in circumstances “since the time of the stipulation” (Matter of Hight v Hight, 19 AD3d 1159, 1160 [2005] [internal quotation marks omitted]), we conclude, contrary to her contention, that there is a sound and substantial basis for Family Court’s determination that the father had established such a change in circumstances (see generally Matter of Chapman v Tucker, 74 AD3d 1905, 1906 [2010]; Matter of Bryan K.B. v Destiny S.B.,…
discussed Cited as authority (rule) Caughill v. Caughill
N.Y. App. Div. · 2015 · confidence medium
Even assuming, arguendo, that the JHO’s prehearing statement, i.e., that she saw no other outcome for the case than to award custody to the mother, was improper, we note that “[o]ur authority in determinations of custody is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination ... , we will do so in the interests of judicial economy and the well-being of the child” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Howell v Lovell, 103 AD3d 1229, 1231 [2013]).
discussed Cited as authority (rule) Maracle v. Deschamps
N.Y. App. Div. · 2015 · confidence medium
Although the mother is correct that, in seeking to change an existing custody arrangement that is based upon a stipulation, the father was required to show a change in circumstances “since the time of the stipulation” (Matter of Hight v Hight, 19 AD3d 1159, 1160 [2005] [internal quotation marks omitted]), we conclude, contrary to her contention, that there is a sound and substantial basis for Family Court’s determination that the father had established such a change in circumstances (see generally Matter of Chapman v Tucker, 74 AD3d 1905, 1906 [2010]; Matter of Bryan K.B. v Destiny S.B.,…
cited Cited as authority (rule) Pecore v. Blodgett
N.Y. App. Div. · 2013 · confidence medium
Moreover, “[o]ur authority in determinations of custody is as broad as that of Family Court” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Louise E.S. v W.
cited Cited as authority (rule) Pecore v. Blodgett
N.Y. App. Div. · 2013 · confidence medium
Moreover, “[o]ur authority in determinations of custody is as broad as that of Family Court” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Louise E.S. v W.
cited Cited as authority (rule) Cole v. Nofri
N.Y. App. Div. · 2013 · confidence medium
Moreover, “[o]ur authority in determinations of custody is as broad as that of Family Court” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Louise E.S. v W.
cited Cited as authority (rule) Cole v. Nofri
N.Y. App. Div. · 2013 · confidence medium
Moreover, “[o]ur authority in determinations of custody is as broad as that of Family Court” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see Matter of Louise E.S. v W.
discussed Cited as authority (rule) Olufsen v. Plummer
N.Y. App. Div. · 2013 · confidence medium
Moreover, we see no basis for disturbing the court’s “first-hand assessment of the credibility of the witnesses” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]), including the psychologist.
discussed Cited as authority (rule) Olufsen v. Plummer
N.Y. App. Div. · 2013 · confidence medium
Moreover, we see no basis for disturbing the court’s “first-hand assessment of the credibility of the witnesses” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]), including the psychologist.
discussed Cited as authority (rule) HOWELL, PATRICK A. v. LOVELL, FAATIMAH A.
N.Y. App. Div. · 2013 · confidence medium
“Our authority in determinations of custody is as broad as that of Family Court . . . and where, as here, the record is sufficient for this Court to make a best interests determination . . . , we will do so in the interests of judicial economy and the well-being of the child” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]; see e.g.
cited Cited as authority (rule) Thurston v. Skellington
N.Y. App. Div. · 2011 · confidence medium
We agree with DSS that Family Court’s determination with respect to custody lacks a sound and substantial basis in the record (see Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]).
discussed Cited as authority (rule) HOWDEN, CURTIS P. v. KEELER, NAOMI R.
N.Y. App. Div. · 2011 · confidence medium
Thus, the court’s custody determination, “based upon [its] first-hand assessment of the credibility of the witnesses” (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007] [internal quotation marks omitted]), has a sound and substantial basis in the record and should not be disturbed.
discussed Cited as authority (rule) Thomas v. Thomas
N.Y. App. Div. · 2010 · confidence medium
Furthermore, we note that, although the Attorney for the Children indicates in her brief on appeal that the children have “changed their minds” since the time of trial and no longer wish to relocate to Maryland with their father, the children’s wishes are not determinative (see Eschbach v Eschbach, 56 NY2d 167, 172-173 [1982]; Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450 [2007]).
discussed Cited as authority (rule) Michael P. v. Judi P.
N.Y. App. Div. · 2008 · confidence medium
Stephen S., 64 NY2d 946, 947 [1985]; Matter of Gabriela, 283 AD2d 983, 984 [2001], lv denied 96 NY2d 721 [2001]) and, in our view, the court’s determination lacks a sound and substantial basis in the record and thus should not be given deference (see Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]; Gabriela, 283 AD2d at 984 ).
discussed Cited "see" MILLS, ALLYSON A. v. RIEMAN, JOEL T.
N.Y. App. Div. · 2015 · signal: see · confidence high
We agree with the mother that “Family Court’s determination with respect to custody lacks a sound and substantial basis in the record” (Matter of Thurston v Skellington, 89 AD3d 1520, 1520 [2011]; see Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449 [2007]). “[A] custody determination should be made only after a full and fair hearing at which the record is fully developed” (Matter of Peek v Peek, 79 AD3d 753, 754 [2010]; see Barnes v Barnes, 234 AD2d 959, 959 [1996]).
discussed Cited "see" Krug v. Krug
N.Y. App. Div. · 2008 · signal: see · confidence high
Generally, a “ ‘court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record’ ” (Matter of Hill v Rogers, 213 AD2d 1079, 1079 [1995]; see Matter of Bryan K.B. v Destiny K.B., 43 AD3d 1448, 1449 [2007]; Matter of Vincent A.B. v Karen T., 30 AD3d 1100, 1101-1102 [2006], lv denied 7 NY3d 711 [2006]).
Retrieving the full opinion text from the archive…
In the Matter of Bryan K.B.
v.
Destiny S.B., (Proceeding No. 1.) In the Matter of Destiny S.B. v. Bryan K.B., (Proceeding No. 2.)
Appeal No. 1.
Appellate Division of the Supreme Court of the State of New York.
Sep 28, 2007.
43 A.D.3d 1448
Cited by 46 opinions  |  Published

[*1449] Appeal from an order of the Family Court, Genesee County (Eric R. Adams, J.), entered September 15, 2006 in a proceeding pursuant to Family Court Act article 6. The order awarded petitioner-respondent custody of the child with visitation to respondent-petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is denied, the cross petition is granted, custody of the child is awarded to respondent-petitioner with visitation to petitioner-respondent and the matter is remitted to Family Court, Genesee County, for further proceedings in accordance with the following memorandum: Bryan K.B. and Destiny S. B. are the parents of Clayton B. Approximately nine months after Bryan K.B., the father, moved out of the marital residence, he petitioned for custody of the child. Destiny S.B, the mother, thereafter cross-petitioned for custody. Family Court conducted a hearing and, by the order in appeal No. 1, the court granted the father custody of the child, with visitation to the mother. The father failed to act upon that order, however, and the mother thereafter petitioned for a change of custody. The court conducted a second hearing and, by the order in appeal No. 2, the court continued custody with the father. We conclude that the court erred in awarding custody to the father in the first instance, and we therefore dismiss appeal No. 2 as moot (see Lucey v Lucey, 60 AD2d 757 [1977]).

Generally, a “ ‘court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record’ ” (Matter of Hill v Rogers, 213 AD2d 1079, 1079 [1995]; see Matter of Vincent A.B. v Karen T, 30 AD3d 1100, 1101-1102 [2006], lv denied 7 NY3d 711 [2006]; Matter of John ER. v Tracy A.R., 13 AD3d 1125 [2004]). “Such deference is not warranted, however, where the custody determination lacks a sound and substantial basis in the record” (Fox v Fox, 177 AD2d 209, 211-212 [1992]). In our view, the court’s determination in this case lacks a sound and substantial basis in the record.

[*1450] Although primary importance is to be placed, on each parent’s “ability to provide for the child’s emotional and intellectual development, the quality of the home environment and the parental guidance provided” (Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]), none of those factors was adequately addressed in the court’s decision. Furthermore, the court failed to take into consideration such important factors as the desires of the child and his need for stability in remaining with the only primary caretaker he has known (see id,.; see also Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]).

Our authority in determinations of custody is as broad as that of Family Court (see Louise E.S., 64 NY2d at 947) and where, as here, the record is sufficient for this Court to make a best interests determination (see Matter of Brian C., 32 AD3d 1224, 1225 [2006], lv denied 7 NY3d 717 [2006]), we will do so in the interests of judicial economy and the well-being of the child (see Matter of Hilliard v Peroni, 245 AD2d 1107 [1997]; cf. Matter of Van Gorder v Van Gorder, 188 AD2d 1049, 1050 [1992]). In making a determination concerning custody, “numerous factors are to be considered, including the continuity and stability of the existing custodial arrangement, the quality of the child’s home environment and that of the parent seeking custody, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, and the individual needs and expressed desires of the child” (Matter of Jeffrey L.J. v Rachel K.B., 42 AD3d 912, 913 [2007]; see Fox, 177 AD2d at 210; see generally Eschbach, 56 NY2d at 171-173). After reviewing those factors, we conclude that it is in the child’s best interests to award custody to the mother, although it appears that both parents are fit and appropriate caretakers. First, the mother was the child’s primary caretaker for the child’s entire life, with the possible exception of three months, and thus the continuity and stability of that living situation weighs in favor of the mother. Second, although the mother has some physical ailments and suffers from some degree of depression, those problems have not prevented her from taking an active role in the child’s upbringing. Third, the quality of the home environment weighs in favor of the mother. She has a four-bedroom apartment, which she shares with one or two of the child’s half siblings. The father, on the other hand, shares a two-bedroom apartment with his girlfriend and her baby and, on weekends, with her three other children as well. Additionally, the father is absent during significant portions of the day, and thus the child is cared for by the father’s girlfriend, a woman with whom the[*1451] child has a questionable relationship. Fourth, the evidence establishes that the mother took a much more active role than the father in the emotional and intellectual development of the child by enrolling him in numerous extracurricular activities, including music lessons, a library reading program, soccer and a handbell choir at church. Finally, the Law Guardian indicated that the child was very happy residing with the mother, while the father’s girlfriend admitted that the child often acted out while at the father’s residence.

We therefore reverse the order in appeal No. 1, deny the father’s petition, grant the mother’s cross petition, award custody of the child to the mother with visitation to the father and remit the matter to Family Court to fashion an appropriate visitation schedule. Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.