        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”
                                   -2-                          1093
                                                           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
