Wellman v. Dutch

Denman, P. J., and Lawton, J.

(dissenting). We respectfully dissent. Family Court considered only appropriate and relevant factors, and properly weighed those factors in determining that an award of custody to petitioner father would be in the best interests of the child and would best promote her welfare and happiness (see, Domestic Relations Law § 240 [1]; Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89). We see no reason to set aside its determination. Petitioner has greater financial ability to care for the child; he earns approximately $30,000 a year, whereas respondent mother earns approximately $16,000. Petitioner owns a three-bedroom house that he shares with his wife and their two children; respondent rents a one-bedroom apartment that she shares with her 10-year-old daughter. The record establishes that the child care situation in petitioner’s home is superior to the arrangement made by respondent. While petitioner’s wife would be home with the child, respondent must awaken the child and drop her off at respondent’s aunt’s home by 5:45 every morning. The record further establishes that the child is in the care of the aunt for nine to 13 hours each workday; respondent’s aunt has three children of her own and also takes care of a mentally handicapped senior citizen. The record also establishes that petitioner is more emotionally stable than respondent, and that he has displayed greater stability in his living situation. In appropriate circumstances, continuity of the child’s present custodial setting can be an extremely important factor, but it is necessarily a factor of *794subordinate importance where the court is making an initial determination of custody in a proceeding commenced within weeks of the child’s birth. In any event, on this record, continuity of setting does not outweigh the numerous other factors supporting the court’s award of custody to petitioner, who is the more fit parent. (Appeal from Order of Oneida County Family Court, Ringrose, J. — Custody.) Present — Den-man, P. J., Balio, Lawton, Doerr and Boehm, JJ.