Award of Primary Custody to Father Reversed

In reversing Family Court and awarding primary physical custody to the mother and visitation to the father, the Fourth Department, over a dissent, wrote:

We agree with the mother and the AFC that the mother met her burden of establishing a change of circumstances. Since the original custody trial, each party has remarried and has had two additional children who are younger than the subject child, and the father has two step-children who are older than the subject child. The evidence established that the child felt isolated in the father’s home and indicated a strong desire to live with the mother. While a 10-year- old child’s preference regarding the parent with which he or she would like to reside is not dispositive, it is a factor to consider in determining whether there has been a change in circumstances … . The evidence further established that the child’s anxiety with respect to living with the father has progressed to the point where he has expressed to others his thoughts of harming the father and the father’s family, which led the parties to agree that the child needs counseling.  Matter of Cole v Nofri, 302, 4th Dept, 6-14-13