Friederwitzer v. Friederwitzer

Weinstein, J.,

dissents and votes to reverse the order insofar as appealed from and deny defendant’s motion, with the following memorandum: I dissent from the holding of the majority which affirms the transfer of joint custody of the children (physical custody being with the mother) to sole custody with the father. Custody of children already residing with one parent pursuant to an agreement should not be transferred absent extraordinary circumstances (see Corradino v Corradino, 48 NY2d 894; Matter of Nehra v Uhlar, 43 NY2d 242; La Veglia v La Veglia, 54 AD2d 727), and I can find no such extraordinary circumstances in the record here. The mother, while perhaps not entirely faultless as a parent, acted with reasonable concern for her daughters’ welfare, and there were no actions or incidents as to justify the extreme judicial remedy of transference of custody. The father, on the other hand, exercised his rights to visitation only sparingly, and not at all during one two and one-half month period. The father, who is remarried to a woman with two children of her own, now seeks to remove his daughters from the custody of their mother, his former wife, and to place them in a blended family relationship in which they would share parental affections with two step-siblings. Although the parties’ older daughter expressed a preference to reside with her father, the courts have held that the custody preferences of a child of tender years need not be given a great deal of weight, in light of the inability of such a child to perceive what is truly in his or her best interests (see Matter of Ebert v Ebert, 38 NY2d 700; Bunim v Bunim, 298 NY 391). In light of these considerations, I cannot concur in this decision removing the children from their mother’s custody.