Fiorelli v Fiorelli

Fiorelli v Fiorelli 2006 NY Slip Op 08380 [34 AD3d 1216] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

Robert Fiorelli, Appellant, v Leah Fiorelli, Respondent.

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Appeal from a judgment of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered April 11, 2005 in a divorce action. The judgment, inter alia, awarded the parties joint custody of their daughter.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the provision with respect to alternate year decision-making authority and as modified the judgment is affirmed without costs.

Memorandum: Although we recognize that an award of joint custody is reserved for "relatively stable, amicable parents behaving in mature civilized fashion" (Braiman v Braiman, 44 NY2d 584, 589-590 [1978]), we nevertheless conclude that Supreme Court properly granted the parties joint custody of their daughter in this contested custody matter. The record establishes that, with professional guidance, the parties established a joint custodial arrangement during the pendency of the matrimonial action. Both parties have shown that they are capable of placing the well-being of their daughter above their own needs. "[T]he final consideration for the court ultimately remains the best interests of the child" (Matter of Ammann v Ammann, 209 AD2d 1032, 1033 [1994]) and, here, it is in the best interests of the parties' daughter that the joint arrangement continue, despite the fact that each party sought sole custody. However, the provision that, in the event the parties are unable to agree on issues concerning their daughter, decision-making authority be given to one parent in even-numbered years and the other parent in odd-numbered years is both arbitrary and contrary to the concept of joint parental decision-making and must be vacated. We therefore modify the judgment accordingly. Present—Kehoe, J.P., Gorski, Martoche, Smith and Pine, JJ.