(concurring). I write separately because I concur *214with the majority that the motion should have been denied, but for an entirely different reason. In this case, parents, who agreed to joint custody of their children, are before the court because the mother sought a court order changing the primary physical residence from the father to her. The court heard testimony from both parents, the paternal grandmother, and the mother’s new husband’s parents, received two reports from the children’s Law Guardian recommending the change, and conducted in camera interviews with the children, a daughter aged 10 and a son aged 5. The court then changed primary physical residence based mainly on the strongly held views of the daughter that she felt closer to her mother and wanted to live with her. The father, who, with the aid of his mother, maintained a home for the children after the mother had left some five years earlier, denied that the daughter truly wanted to move but acknowledged that the mother was a good parent to whom the children were close.
The majority analyzes this case in terms of cases dealing with change of custody. I believe a more appropriate analysis would start with the fact that the parties agreed to joint custody and that neither parent is seeking sole custody. The trial court expressly reaffirmed the order of joint custody. While not statutorily provided for in New York State, "[tjhere is a strong consensus that joint custody arrangements should be the alternative of choice where both parties agree to that arrangement” (4 Foster, Freed and Brandes, Law and the Family New York § 1:22, at 97 [2d ed]). Joint custody includes both shared decision making and shared time with the children (id,., at 99-100). Even though serious difficulties may arise, especially when a parent lives with someone, remarries or moves (all of which happened here), joint custody most closely approximates life before separation and provides the child with the best opportunity to know and associate with both parents (id., at 100). "The chances of joint custody working may be enhanced where mediation or counselling services are available to parents who are committed to making the child’s welfare the paramount concern. The interjection of a neutral and experienced third party may work wonders” (id., at 101).
Because the concept of joint custody is based on the premise that the parents are both committed to working together to foster the best interests of their children, the court ought not to be deciding joint custody disputes. If the parents cannot reach an agreement, either by themselves or with the help of a third party, the parent seeking a determination which the other parent cannot accept should be seeking sole custody, not *215court intervention in joint custody (see, e.g., Friederwitzer v Friederwitzer, 55 NY2d 89).
In this case the majority is ordering children returned from the mother to the father after a school year in a different district, 45 minutes away from the father’s home. Of course, the record that this court reviews ends with the determination on appeal. We have no information about what has happened since the children moved. The trial court’s expressed hope was that the change of residence would give the children a more balanced and realistic understanding of both parents (and an appreciation of what each had given the children in the past and can continue to give in the fiiture).
Were this case between joint custodians properly determined by the court based on principles that apply to change of custody, I would vote to affirm. The court’s ultimate burden is to determine what is in the best interest of the children (see, Friederwitzer v Friederwitzer, supra). The court had the benefit of two thoughtful reports by the Law Guardian as well as the opportunity to hear from everyone involved. While a 10-year-old child certainly cannot automatically determine what is in her best interest, the court properly considered her views and the reasons for them. The father could not accept that the daughter really wanted to spend more time with her mother, but the court’s determination that this was the daughter’s strong desire is fully supported by the record. In Friederwitzer, the children were 11 and 8 and their wishes, although not determinative, were carried out in the ultimate decision by the Court of Appeals. The father has not identified any facts from which it could be determined that it would be contrary to the children’s best interests to let them live with their mother and have extensive visitation with the father, especially in view of the fact that the father has weekends free and the mother’s job requires her to work most weekends. The father’s position seems to be based on his sense that change would be unfair to him after all that he has done, rather than on what is best for the children. The record supports the court’s conclusion that the adjustment it ordered in contact with the parents would facilitate the children’s long-term relationship with both parents.
Green, J. P., Lawton and Davis, JJ., concur with Balio, J.; Pine, J., concurs in a separate opinion.
Order reversed on the law, without costs, motion denied and matter remitted to Supreme Court for further proceedings in accordance with the opinion by Balio, J.