Voelker v. Keptner , 549 N.Y.S.2d 297 ( 1989 )

Order modified on the law and as modified affirmed with costs, in accordance with the following memorandum: In this proceeding petitioner father sought a change of custody of his out-of-wedlock child from respondent mother, who has been the custodial parent of the child since birth. Petitioner requested an order of joint custody with increased visitation. No allegations were made in the petition that respondent, who is now married to a third party, was unfit. To the contrary, petitioner concedes that the child is presently well cared for. His request for joint custody was based solely on his interest in becoming more involved in the child’s upbringing. In our view, Family Court, in granting the father’s petition, erroneously construed Domestic Relations Law § 240 as requiring an order of joint custody unless good cause can be shown which militates against such order. In this regard, the court stated, "[t]he respondent [mother], on the other hand, must come to grips, as this court perceives it, with the fact that although this child was born to her out-of-wedlock and has resided for its entire two years with her, the law states that neither parent has a prima facie right to custody” and thereafter concluded that absent a compelling showing to the contrary, which it did not find in this case, it would order joint custody. Section 240 states that neither parent has a prima facie right to custody; it does not mean that parents have the right to joint custody in the absence of countervailing factors. Joint custody is not to be favored and, as the Court of Appeals stated in Braiman v Braiman (44 NY2d 584, 589-590), is primarily encouraged "as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion”. There is no voluntary consent in this case and disagreements over the child’s upbringing with regard to religion and education already exist between the parents. Given these circumstances, Family Court’s award of joint custody is not in the child’s best interests. Based on our review of the record, we conclude that the best interests of the child would be served by continuing custody with respondent, with additional visitation rights, as awarded by Family Court, to petitioner.

All concur, except Balio and Davis, JJ., who dissent and vote to affirm, in the following memorandum.