Patrick Kaleta v. Ashley Kaleta

Upon our review of the record, we conclude that the court’s determination to award primary physical custody to the father lacks an evidentiary basis in the record (cf. Matter of DeVore v. O’Harra-Gardner, 177 A.D.3d 1264 1266, 112 N.Y.S.3d 380 [4th Dept. 2019]). The evidence presented at the hearing established that the mother’s weekday and daytime work schedule more closely aligns with the child’s school schedule. Although the mother’s work day will start earlier than the child’s school day, the mother testified to the specific arrangements that she had made to allow the child to have a consistent routine in the morning. In contrast, the father testified that his work schedule includes at least two weeknight commitments and frequent out-of-town travel on weekends during the majority of the school year. The father had no specific plan for child care during those times, but instead he speculated that the then-five-year-old child could either come with him to work, stay with relatives in the Buffalo area, or even be returned to the mother. We conclude that, despite the fitness of both parents, it is in the best interests of the child to award primary physical residence of the child to the mother. We therefore reverse the order and we remit the matter to Supreme Court to fashion an appropriate visitation schedule with the father.