Friday, November 18, 2016
IS CUSTODY SHARED OR NOT
MATTER OF TM v. JK, 2016 NY Slip Op 26315 - NY: Family Court 2016:
"......Respondent's basic visitation schedule consisted of three weekends per month, one night during the week (as agreed), and holidays and vacations (as agreed). For the 2015 calendar year, the evidence (particularly, respondent's exhibit A) showed that the child spent about 33.74 percent of all hours with the father, and thus the child spent about 66.26 percent of all hours with the mother. Respondent's exhibit A also showed that the child spent "40.27 % of all days" with the father, but this percentage is skewed because some of the "days" were not overnights. Courts have declined to accord greater weight to the custodial days as compared to the overnight custodial periods (see, Somerville, id. at 880, and Matter of Mitchell v. Mitchell, 134 AD3d 1213, 1215 [3d Dept 2015]). Clearly, the petitioner is the party with primary physical residence of the child."