                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     520657
_________________________________

In the Matter of DAVID J.
   GENTILE,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ERIKA H. WARNER,
                    Respondent.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   April 25, 2016

Before:   Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

                             __________


     Diane V. Bruns, Ithaca, for appellant.

     A.L. Beth O'Connor, Cortland, for respondent.

     Christopher Pogson, Binghamton, attorney for the child.

                             __________


Aarons, J.

      Appeal from an order of the Family Court of Tioga County
(Keene, J.), entered February 24, 2015, which, among other
things, partially dismissed petitioner's application, in a
proceeding pursuant to Family Ct Act article 6, for custody of
the parties' child.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son (born in 2012).
The parties previously lived together in Tioga County, but their
relationship unraveled shortly after the birth of the child. The
mother left with the child and moved to Herkimer County, during
                              -2-                520657

which time the father would visit on some weekends. The parties
reconciled and the mother returned with the child to Tioga County
to be with the father. The parties' relationship, however,
eventually faltered, and they permanently separated in June 2014,
with the mother returning to Herkimer County with the child.

      The father subsequently commenced the first of these
proceedings seeking temporary joint custody, primary physical
custody and for the parties to share custodial periods on
alternating weeks. In response, the mother commenced the second
of these proceedings seeking joint legal custody and primary
physical custody with the father having visitation on alternating
weekends. After a fact-finding hearing, Family Court awarded
joint legal custody to the parties, with primary physical custody
to the mother, and set forth a visitation schedule in which the
father would have weekend visitation, except for the first
weekend of the month, and each party would have physical custody
on alternating weeks in July and August. The father appeals.

      When making an initial custody determination, Family
Court's primary consideration is the best interests of the child
(see Jeannemarie O. v Richard P., 94 AD3d 1346, 1346 [2012];
Matter of Richardson v Alling, 69 AD3d 1062, 1063 [2010]). This
requires reviewing a variety of factors, including "each parent's
ability to provide the child with a stable home environment,
their past performance as parents, their relative fitness and
ability to provide for the child's well-being and the child's
wishes" (Matter of Slovak v Slovak, 77 AD3d 1089, 1091 [2010]).
We accord due deference to Family Court's findings and
credibility determinations and will not disturb them so long as
they are supported by a sound and substantial basis (see Matter
of Trimble v Trimble, 125 AD3d 1153, 1154 [2015]; Matter of Keen
v Stephens, 114 AD3d 1029, 1030 [2014]).

      The father first challenges Family Court's award of primary
physical custody of the child to the mother. The record
establishes that both parties are financially and emotionally
capable of caring for the child, and they each maintain suitable
home environments. The father is very involved with the child,
plays with him and attends to his medical needs. Both parties
have jobs, but the mother has a more flexible work schedule that
                              -3-                520657

allows her to be with the child during the day. The father,
meanwhile, works during the day and would have to place the child
in daycare. The mother has also been the primary caretaker of
the child and has an established daily routine with the child
involving meals, snacks, playing games and the participation in a
"mommy and me daycare" program. Considering all of the
circumstances and giving due deference to Family Court's
findings, we conclude that Family Court's determination of
placing primary physical custody of the child with the mother was
supported by a sound and substantial basis (see Matter of Dench-
Layton v Dench-Layton, 123 AD3d 1350, 1352 [2014]; Matter of
Gordon v Richards, 103 AD3d 929, 930-931 [2013]; Matter of
Christina MM. v George MM., 103 AD3d 935, 937 [2013]).

      We agree, however, with the father and the attorney for the
child, whose position is relevant but not dispositive, that it is
in the best interests of the child to expand the father's
parenting time (see Matter of Lilly NN. v Jerry OO., 134 AD3d
1312, 1316 [2015]; Matter of Burton v Barrett, 104 AD3d 1084,
1086 [2013]). As our authority in custody and visitation matters
is as broad as that of Family Court and the record is
sufficiently complete for us to modify the father's parenting
time, we need not remit the matter to Family Court (see Matter of
Knox v Romano, 137 AD3d 1530, 1532 [2016]; Ehrenreich v Lynk, 74
AD3d 1387, 1390 [2010]). Accordingly, assuming that Martin
Luther King Day, Presidents' Day, Memorial Day and Columbus Day
fall on the father's weekend, the weekend shall be extended until
Monday at 6:00 p.m. In addition, the father shall be afforded an
entire week in March or April beginning in 2017. Once the child
begins school, this week shall coincide with the child's spring
vacation. Finally, during the summer, which we define as the
last Sunday in June through the first Sunday in September, the
father shall have six weeks with the child and the mother shall
have the balance. The parties shall determine which weeks they
prefer, with the father picking first and neither party having
more than two consecutive weeks. The provisions of the Family
Court order not specifically modified herein remain in full force
and effect.

     Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.
                              -4-                  520657

      ORDERED that the order is modified, on the facts, without
costs, by adjusting the parenting time as set forth in this
Court's decision, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
