The Second Department has modified an order of Suffolk County Family Court Attorney-Referee Roseann Orlando to direct that when one parent is working, that parent, prior to making babysitting arrangements with a nonparent, shall first afford the other parent the opportunity to care for the subject child during such work period.

In its August 27, 2014 opinion in Matter of Saravia v. Godzieba, the Appellate Division otherwise upheld Referee Orlando’s order that had granted the mother sole custody of the parties’ almost 3-year old son.

The mother and the father had never been married. After the birth of their son in September, 2011, the parties resided together for approximately six months until the mother, with the child, moved out. In June, 2012, the parties cross-petitioned for sole legal and physical custody of the child. After a hearing at which the parties and one other witness testified, Referee Orlando awarded the mother sole legal and physical custody of the child.

The evidence at the hearing established that both parents loved the child, were gainfully employed, maintained their own homes, and could adequately provide for the child’s overall development. However, the Family Court, having the benefit of observing and listening to the witnesses, including the testimony of both parties, found that the mother was better suited to place the child’s interests ahead of her own and to foster the child’s relationship with the other parent. Upholding the custody determination, the Second Department held that here was a sound and substantial basis in the record to support Referee Orlando’s determination that it was in the best interests of the child to award sole custody to the mother, with visitation to the father.

Moreover, the Second Department rejected the father’s contention on appeal that an award of joint custody or equal parenting time would have been in the child’s best interests. The parties were sometimes antagonistic toward each other and demonstrated an inability to cooperate on certain important matters concerning the child.

However, the appellate court did add a child care right of first refusal.

Nonetheless, we find that under the circumstances of this case, where both parties have different work schedules and have expressed a desire to care for the child during the periods when the other parent is working, it would be in the best interests of the child for each parent, prior to arranging for a nonparent to babysit the child during a work period, to first afford the other parent the opportunity to care for the child during that time.

Clifford J. Petroske, P.C., of Bohemia, represented the father. No counsel for the mother was listed in the opinion. Thomas W. McNally, of Huntington, N.Y., served as Attorney for the Child.