Opinion
September 30, 1991
Appeal from the Family Court, Suffolk County (Berler, J.).
Ordered that the appeal from the order entered September 14, 1990, is dismissed, as that order was superseded by the order entered November 29, 1990, made upon reargument; and it is further,
Ordered that the order entered November 29, 1990, is affirmed insofar as reviewed; and it is further,
Ordered that the respondent is awarded one bill of costs.
The parties were married in 1983. Their only child, Jeremy, who is the subject of this appeal, was born on August 14, 1986. The husband subsequently commenced a divorce action in December 1986 following his wife's departure from the marital home in April 1986. At issue on appeal is the propriety of an order of the Family Court, which, following a hearing, inter alia, awarded custody of Jeremy to his mother.
It is clear that between two natural parents, the preeminent concern in a custody determination is what is in the best interests of the child (see, Domestic Relations Law § 240; Eschbach v. Eschbach, 56 N.Y.2d 167; Friederwitzer v Friederwitzer, 55 N.Y.2d 89; Matter of Coyne v. Coyne, 150 A.D.2d 573, 575; Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449; Alan G. v. Joan G., 104 A.D.2d 147; Aldous v. Aldous, 99 A.D.2d 197, 199, cert denied 469 U.S. 1109). Courts making custody determinations must weigh several factors of varying degrees of importance, including the relative fitness of the parents, the original placement of the child and the length of that placement, abduction, or defiance of legal process, the quality of the home environment, the existence of siblings, the parents' financial status, parental guidance and their ability to provide for the child's emotional and intellectual functioning, the child's desires, and religion (see, Eschbach v. Eschbach, supra, at 172, 173; Friederwitzer v. Friederwitzer, supra, at 94; Matter of Robert T.F. v. Rosemary F., supra). In reviewing an award of custody, an appellate court must be mindful that a custody determination is a matter entrusted to the discretion of the trial court, and its decision is entitled to great deference, particularly because any determination turns in large part upon the trial court's observation of demeanor and assessment of the credibility, character, temperament and sincerity of the parties involved (see, Eschbach v. Eschbach, supra, at 173; Del Papa v Del Papa, 172 A.D.2d 798; Nir v. Nir, 172 A.D.2d 651; Matter of Diane L. v. Richard L., 151 A.D.2d 760, 761; Matter of Coyne v Coyne, supra; Matter of Robert T.F. v. Rosemary F., supra; Leistner v. Leistner, 137 A.D.2d 499, 500). Based thereon and upon a review of the record in light of the factors outlined above, we are satisfied that the Family Court correctly determined that the best interests of Jeremy would be served by permitting physical custody to remain with his mother.
Moreover, contrary to the petitioner's contention that his constitutional rights were violated by the court's prohibition of verbal or telephone contact between the parties, except in emergencies, we find that the Family Court's decision on this issue was amply supported by the evidence. Previously, this court has held that a restriction upon a noncustodial parent's telephone calls to his/her children is not appropriate absent a showing that such calls disrupted the household (see, Di Mascio v. Di Mascio, 88 A.D.2d 966, 967). The testimony of the witnesses, and the contents of almost three hours of audiotapes admitted into evidence, clearly demonstrate the hostility between the parties and the disruptive effect these confrontations caused in the respective households. We therefore find that the Family Court properly exercised its discretion in limiting telephonic and verbal communications between the parties to emergency circumstances only.
We have examined the petitioner's remaining contention and find it to be without merit. Harwood, J.P., Lawrence, Eiber and Balletta, JJ., concur.