SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1093 

CAF 14-01168 

PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF COURTNEY M. CAMPBELL, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

BRYANT M. KNAPP, RESPONDENT-APPELLANT. 

 

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF

COUNSEL), FOR RESPONDENT-APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN M. WESLEY OF

COUNSEL), FOR PETITIONER-RESPONDENT.

ELIZABETH C. FRANI, ATTORNEY FOR THE CHILD, SYRACUSE. 

 

Appeal from an order of the Family Court, Onondaga County

(Salvatore Pavone, R.), entered September 12, 2013 in a proceeding

pursuant to Family Court Act article 6. The order, among other

things, awarded petitioner sole legal and primary physical custody of

the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting respondent visitation on

holidays and birthdays and as modified the order is affirmed without

costs, and the matter is remitted to Family Court, Onondaga County,

for further proceedings in accordance with the following memorandum:

In this proceeding pursuant to Family Court Act article 6, respondent

father appeals from an order awarding petitioner mother sole legal and

primary physical custody of their child. We note at the outset that,

although the father contends that Family Court erred in granting his

request for visitation in the absence of his attorney, the father

received the visitation that he requested and thus will not “be heard

to complain” with respect to visitation (Matter of Mayes v Laplatney,

125 AD3d 1488, 1489). Upon our review of the record, we conclude that

there is a sound and substantial basis for the court’s determination

awarding the mother sole custody (see generally Matter of Donegan v

Torres, 126 AD3d 1357, 1359). Although we agree with the father that

the record does not support the court’s conclusion that he had smoked

marihuana, we nevertheless see no basis to disturb the court’s

determination. Here, the record demonstrates that the determination

was “the product of ‘careful weighing of [the] appropriate factors’ ”

(Matter of McLeod v McLeod, 59 AD3d 1011, 1011), and we “accord great

deference to the findings of the court, which [was] in the best

position to evaluate the character and credibility of the witnesses”
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CAF 14-01168 

(Matter of Garland v Goodwin, 13 AD3d 1059, 1059). We likewise reject

the father’s alternative contention that joint legal custody with

shared physical placement is in the child’s best interests. It is

well settled that “ ‘[j]oint custody should not be imposed on

embattled and embittered parents who appear unable to put aside their

differences for the benefit of the child’ ” (Matter of Vasquez v

Barfield, 81 AD3d 1398, 1399), and here the record establishes that

the parties have an acrimonious relationship.

Finally, we agree with the father that the Referee erred in

failing to award him visitation on holidays and birthdays. We

therefore modify the order accordingly, and we remit the matter to

Family Court for a determination of that visitation schedule.

Entered: October 9, 2015 Frances E. Cafarell

Clerk of the Court