Bowman v. Engelhart, 112 A.D.3d 1187 (N.Y. App. Div. 2013). · Go Syfert
Bowman v. Engelhart, 112 A.D.3d 1187 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
25 citation events (25 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Erick RR. v. Victoria SS. (nyappdiv, 2022-06-30)
Treatment trajectory · 2014 → 2026 · click a year to view as-of
2014 2020 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Erick RR. v. Victoria SS.
N.Y. App. Div. · 2022 · confidence medium
Altogether, Family Court's conclusion that the best interests of the child are served by maintaining stability through residential custody with the mother as opposed to relocating the child to North Carolina with the father is supported by a sound and substantial basis, and the record does not warrant this Court disturbing that determination ( see Matter of Christina E. v Clifford F. , 200 AD3d 1111, 1113-1114 [2021]; Matter of Lonny C. v Elizabeth C. , 186 AD3d 950 , 954 [2020]; Matter of Jacob WW. v Joy XX. , 180 AD3d 1154 , 1158 [2020]). [FN1] However, turning to the father's contentions co…
discussed Cited as authority (rule) B Matter of Driscoll v. Oursler (2×)
N.Y. App. Div. · 2017 · confidence medium
Given the evidence of mutual hostility, we find that the record amply supports Family Court’s determination that joint custody was not feasible (see Matter of David J. v Leeann K, 140 AD3d at 1211; Bowman v Engelhart, 112 AD3d 1187, 1188 [2013]).
discussed Cited as authority (rule) Herrera v. Pena-Herrera
N.Y. App. Div. · 2017 · confidence medium
Supreme Court’s credibility determinations are accorded great deference, and its findings will not be disturbed so long as they are supported by a sound and substantial basis in the record (see Funaro v Funaro, 141 AD3d 893, 896 [2016]; Bowman v Engelhart, 112 AD3d 1187, 1187-1188 [2013]).
discussed Cited as authority (rule) Matter of Berezny v. Raby
N.Y. App. Div. · 2016 · confidence medium
The evidence of the parties’ ongoing conflicts and inability to communicate regarding the child supports the determination that joint legal custody is not feasible and that the mother should be awarded sole legal custody (see Matter of Rutland v O’Brien, 143 AD3d 1060, 1062 [2016]; Bowman v Engelhart, 112 AD3d 1187, 1188 [2013]).
discussed Cited as authority (rule) Austin v. Smith
N.Y. App. Div. · 2016 · confidence medium
Our fact-finding powers, however, are as broad as those possessed by Family Court (see Bowman v Engelhart, 112 AD3d 1187, 1189 [2013]; Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004]), and we are persuaded that the mother’s schedule is somewhat more flexible/less demanding than the father’s schedule.
discussed Cited as authority (rule) Austin v. Smith
N.Y. App. Div. · 2016 · confidence medium
Our fact-finding powers, however, are as broad as those possessed by Family Court (see Bowman v Engelhart, 112 AD3d 1187, 1189 [2013]; Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004]), and we are persuaded that the mother’s schedule is somewhat more flexible/less demanding than the father’s schedule.
discussed Cited as authority (rule) Funaro v. Funaro (2×) also: Cited "see"
N.Y. App. Div. · 2016 · confidence medium
The husband now appeals. 2 A court’s primary concern in a child custody determination is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Bowman v Engelhart, 112 AD3d 1187, 1187 [2013]).
discussed Cited as authority (rule) Matter of Engelhart v. Bowman
N.Y. App. Div. · 2016 · confidence medium
The mother appealed from the judgment of divorce, and, on appeal, this Court modified the judgment to the extent of awarding the mother additional parenting time on certain holidays and school vacations (Bowman v Engelhart, 112 AD3d 1187, 1189-1190 [2013]).
discussed Cited as authority (rule) Matter of Knox v. Romano
N.Y. App. Div. · 2016 · confidence medium
Inasmuch as our authority in custody and visitation matters is as broad as that of Family Court and the record is sufficiently complete to permit an informed modification of the visitation provisions (see Bowman v Engelhart, 112 AD3d 1187, 1189 [2013]; Matter *1533 of Burton v Barrett, 104 AD3d 1084, 1086 [2013]), we find that the children’s interests will be best served by increasing the father’s alternate weekend parenting time so as to provide roughly the same number of total hours of visitation that he received under the prior order.
discussed Cited as authority (rule) Matter of Benjamin v. Lemasters
N.Y. App. Div. · 2015 · confidence medium
Initially, we find a sound and substantial basis in the record for Family Court’s determination that joint custody was not feasible, based upon the parties’ mutual history of blocking one another’s access to the child and their testimony that they have difficulty communicating about the child and often misunderstand or misinterpret one another in attempting to reach agreements about her (see Bowman v Engelhart, 112 AD3d 1187, 1188 [2013]; Jeannemarie O. v Richard P., 94 AD3d 1346, 1347 [2012]).
discussed Cited as authority (rule) Robert B. v. Linda B.
N.Y. App. Div. · 2014 · confidence medium
To address this concern, “a court must view all of the circumstances while considering certain factors, such as the parents’ ability to provide a stable home environment for the [child], the [child’s] wishes, the parents’ past performance, relative fitness, ability to guide and provide for the [child’s] overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Bowman v Engelhart, 112 AD3d 1187, 1187 [2013] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) Lawrence v. Kowatch
N.Y. App. Div. · 2014 · confidence medium
Factors to be considered in determining whether a modification will serve the children’s best interests include “the parents’ ability to provide a stable home environment for the child[ren], the child[ren’s] wishes, the parents’ past performance, relative fitness, ability to guide and provide for the children’s] overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Bowman v Engelhart, 112 AD3d 1187, 1187 [2013] [internal quotation marks and citations omitted]; see Matter of Kowatch v Johnson, 68 AD3d at 1495 ).
discussed Cited as authority (rule) Robert B. v. Linda B.
N.Y. App. Div. · 2014 · confidence medium
To address this concern, “a court must view all of the circumstances while considering certain factors, such as the parents’ ability to provide a stable home environment for the [child], the [child’s] wishes, the parents’ past performance, relative fitness, ability to guide and provide for the [child’s] overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Bowman v Engelhart, 112 AD3d 1187, 1187 [2013] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) Lawrence v. Kowatch
N.Y. App. Div. · 2014 · confidence medium
Factors to be considered in determining whether a modification will serve the children’s best interests include “the parents’ ability to provide a stable home environment for the child[ren], the child[ren’s] wishes, the parents’ past performance, relative fitness, ability to guide and provide for the children’s] overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Bowman v Engelhart, 112 AD3d 1187, 1187 [2013] [internal quotation marks and citations omitted]; see Matter of Kowatch v Johnson, 68 AD3d at 1495 ).
discussed Cited "see" Matter of Rockhill v. Kunzman
N.Y. App. Div. · 2016 · signal: see · confidence high
Inasmuch as an award of additional parenting time to the mother is warranted under these circumstances, and “our authority in custody [and visitation] matters is as broad as that of Family Court,” we modify the order to afford the mother parenting time from 4:00 p.m. to 7:00 p.m. every Wednesday during the period that the child is in the father’s care in July and August (Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004]; see Bowman v Engelhart, 112 AD3d 1187, 1189 [2013]).
discussed Cited "see" Windom v. Pemberton
N.Y. App. Div. · 2014 · signal: see · confidence high
“In determining custody, Family Court was required to assess the best interests of the child by considering factors such as the child’s age and wishes, and the parents’ relative fitness, stability and previous performance, as well as their respective home environments and abilities to guide the child, provide for his well-being, and encourage his relationship with the other parent” (M atter of Dana A. v Martin B., 72 AD3d 1136, 1137 [2010] [citations omitted]; see Bowman v Engelhart, 112 AD3d 1187, 1187 [2013]).
discussed Cited "see" Windom v. Pemberton
N.Y. App. Div. · 2014 · signal: see · confidence high
“In determining custody, Family Court was required to assess the best interests of the child by considering factors such as the child’s age and wishes, and the parents’ relative fitness, stability and previous performance, as well as their respective home environments and abilities to guide the child, provide for his well-being, and encourage his relationship with the other parent” (M atter of Dana A. v Martin B., 72 AD3d 1136, 1137 [2010] [citations omitted]; see Bowman v Engelhart, 112 AD3d 1187, 1187 [2013]).
discussed Cited "see" Jarren S. v. Shaming T.
N.Y. App. Div. · 2014 · signal: see · confidence high
“An initial custody determination is controlled by the best interests of the child, taking into consideration such factors as the parents’ past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child’s overall well-being” (Matter of Keen v Stephens, 114 AD3d 1029, 1030 [2014] [internal quotation marks and citations omitted]; see Bowman v Engelhart, 112 AD3d 1187, 1187 [2013]; Matter of Adams v Morris, 111 AD3d 1069, 1069-1070 [20…
discussed Cited "see" Jarren S. v. Shaming T.
N.Y. App. Div. · 2014 · signal: see · confidence high
“An initial custody determination is controlled by the best interests of the child, taking into consideration such factors as the parents’ past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child’s overall well-being” (Matter of Keen v Stephens, 114 AD3d 1029, 1030 [2014] [internal quotation marks and citations omitted]; see Bowman v Engelhart, 112 AD3d 1187, 1187 [2013]; Matter of Adams v Morris, 111 AD3d 1069, 1069-1070 [20…
Retrieving the full opinion text from the archive…
Daniel J. Bowman
v.
Heather M. Engelhart
Appellate Division of the Supreme Court of the State of New York.
Dec 19, 2013.
112 A.D.3d 1187
Spain.
Cited by 19 opinions  |  Published
Spain, J.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered March 13, 2013 in Albany County, ordering, among other things, sole legal custody of the parties’ children to plaintiff, upon a decision of the court.

The parties were married in 2003 and are the parents of two children, a daughter (born in 2006) and a son (born in 2007). Plaintiff (hereinafter the husband) commenced this action for divorce in 2010 and sought, among other things, sole legal custody of the children. In April 2012, Supreme Court temporarily granted the parties joint legal and physical custody of the children and set forth a parenting schedule. The court then conducted a nonjury trial on all unresolved issues and, among other things, awarded the husband sole legal custody of the children. Defendant (hereinafter the wife) was granted parenting time with the children on Wednesday evenings and alternate weekends. The wife now appeals from the judgment of divorce, focusing solely upon the issues of custody and visitation.

As in all child custody determinations, we are guided here by the best interests of the children (see Jeannemarie O. v Richard P., 94 AD3d 1346, 1346 [2012]; Hughes v Gallup-Hughes, 90 AD3d 1087, 1089 [2011]). In assessing the children’s best interests, a court must view all of the circumstances while considering certain factors, such “as the parents’ ability to provide a stable home environment for the child[ren], the children’s] wishes, the parents’ past performance, relative fitness, ability to guide and provide for the children’s] overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Matter of Rundall v Rundall, 86 AD3d 700, 701 [2011]; see Jeannemarie O. v Richard P., 94 AD3d at 1346). Upon review, “we will accord deference to[*1188] [Supreme] Court’s ability to observe the witnesses and assess their credibility, and will not disturb a determination so long as it is supported by a sound and substantial basis in the record” (Matter of Rundall v Rundall, 86 AD3d at 701-702).

The record “supports Supreme Court’s determination that joint custody was not feasible due to the parties’ mutual animosity and inability to communicate as to matters affecting the children” (Jeannemarie O. v Richard P., 94 AD3d at 1347). For a prolonged period of time, the parties were unable to adequately communicate regarding their work schedules so that childcare could be arranged. While that problem has abated, their difficulties dealing with one another remain, with the husband admittedly recording all of his interactions with the wife and the wife stating that she avoids communicating with the husband whenever possible. The record also reveals that they have engaged in disputes over essentially every aspect of child rearing, including matters of discipline, childcare, the sleeping arrangements of the children, and whether and how the children would participate in trips and activities. They also have an ongoing dispute over what school their daughter should attend that has required judicial intervention to resolve.

While the parenting skills of the husband are not above reproach, a sound and substantial basis in the record similarly supports Supreme Court’s grant to him of sole custody. The court credited the testimony of the husband that the wife endeavored to minimize his role in the lives of the children, including by repeatedly telling the children that they would be moving to California to find “a new daddy” who was not “broken” and could be trusted, and depriving the husband of access to the children by encouraging them to spend protracted periods of time in the wife’s separate bedroom when they cohabited in the marital residence. Moreover, the wife routinely referred to the husband in degrading and obscene terms in front of the children. A psychologist who conducted a court-ordered evaluation of the parties and the children noted that the divorce proceedings had impaired the wife’s “ability to support and . . . encourage a healthy relationship between the children and [the husband].” The psychologist nevertheless recommended joint custody, but went on to make the incompatible recommendation that the husband should be granted “the final decision making power if there is a conflict” regarding the children. Indeed, the circumstances presented here indicate that the husband is more fit to act as the custodial parent and more likely to foster a positive relationship between the children and the other parent and he was providently awarded sole custody (see Matter of [*1189] Dana A. v Martin B., 72 AD3d 1136, 1137-1138 [2010]; Matter of McGivney v Wright, 298 AD2d 642, 643-644 [2002], lv denied 99 NY2d 508 [2003]).

While we perceive no reason to disturb the custody award, the attorney for the children — who advocated at trial for joint custody — persuasively argues that the wife’s parenting time should be expanded to include holiday weekends, school vacations, and at least two weeks of time with the children each summer. The parties agreed at oral argument that a modification of visitation along those lines is warranted, although the wife contends that she should be awarded even more parenting time. The parties also concur that the record permits this Court to make an informed modification of the visitation provisions, and we are permitted to do so given that “our authority in custody [and visitation] matters is as broad as that of’ the trial court (Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004]; see Matter of Burton v Barrett, 104 AD3d 1084, 1086 [2013]).

After reviewing the record in this case, we agree that the wife should be awarded additional parenting time, and therefore modify the judgment. Initially, the wife will continue to be entitled to visitation on alternate weekends and Wednesday evenings as set forth in the judgment. Should the wife’s weekend of parenting time fall on a three-day holiday weekend, she is entitled to parenting time beginning at 5:00 p.m. on Thursday evening if the holiday falls on a Friday, or ending at 7:00 p.m. on Monday evening if the holiday falls on a Monday. The wife is entitled to uninterrupted parenting time every year during the children’s week-long school vacation in the spring from 7:00 p.m. on Sunday evening until 5:00 p.m. on Friday evening of that week, while the husband may keep the children for that period during the week-long President’s Day February vacation. The wife is awarded parenting time with the children for the Thanksgiving holiday in odd-numbered years, commencing at 7:00 p.m. on Thanksgiving Eve and running until the Friday after Thanksgiving at 5:00 p.m., while the husband will keep the children for that period in even-numbered years, each adhering to the alternate weekend schedule for the weekend following Thanksgiving. As for Christmas, the wife will have parenting time with the children from 9:00 a.m. on Christmas Eve until 11:00 a.m. on Christmas Day in even-numbered years, and she is entitled to parenting time from 11:00 a.m. on Christmas Day until 9:00 a.m. on December 26 in odd-numbered years; the husband has those same times in odd-numbered and even-numbered years, respectively. The wife is further awarded parenting time with the children from 9:00 a.m. on December[*1190] 26 to 7:00 p.m. on January 1 in even-numbered years, while the husband will care for the children during that period in odd-numbered years.

Furthermore, the parties are entitled to two weeks, consecutive or nonconsecutive, of uninterrupted vacation time with the children during the summer recess from school. Each parent must give written notification to the other of her or his preferred weeks by April 15 and, in the event of a disagreement, the wife’s preference shall have priority in even-numbered years and the husband’s preference shall have priority in odd-numbered years. Finally, the wife shall have additional or alternative parenting time as the parties can agree. We decline the invitation by the attorney for the child to set forth his suggested detailed rights and responsibilities of the parties in writing as part of the custody and visitation arrangement; nevertheless, we stress that both parties would be well advised to scrupulously honor the visitation schedule and to be civil and courteous in all dealings with each other, avoiding the possibility of being held in contempt.

Peters, EJ., Lahtinen and Egan Jr., JJ, concur. Ordered that the judgment is modified, on the law and the facts, without costs, by reversing so much thereof as awarded defendant visitation on alternate weekends from Friday at 5:00 p.m. until Sunday at 7:00 p.m. and every Wednesday from 5:00 p.m. until 7:30 p.m.; award visitation as set forth in this Court’s decision; and, as so modified, affirmed.