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Denial of Father’s Petition for Modification of Custody Reversed

In reversing Family Court and granting father’s petition for a modification of a prior custody order awarding custody to mother, the Fourth Department wrote:

“Generally, a court’s determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” … .  Here, we conclude that the court’s determination that it is in the best interests of the child to remain in the custody of the mother lacks a sound and substantial basis in the record.  ,,,

As a preliminary matter, we conclude that the court abused its discretion in failing to “draw the strongest inference that the opposing evidence permits” against the mother based upon her failure to appear for the hearing …, although we note that the court stated that it was doing so.  Although the court properly determined that the father failed to take steps to enforce his right to visit with the child, the court failed to credit the testimony of the mother’s family that the mother interfered with the father’s ability to visit the child; that the mother disparaged the father in the child’s presence; that, despite the court’s order granting telephone access to the child, the access lasted only two weeks; that the mother was verbally abusive to the child; that the child was afraid of her mother; and that the mother exhibited behaviors that support a determination that she failed to provide a proper home environment and parental guidance for the child … .  Further, the court failed to credit the evidence, including testimony and school records, that the mother failed to provide for the child’s emotional development and that the child’s intellectual and emotional development was supported by the mother’s family members and long-term friend, rather than by the mother ….  We note that there is no evidence that the mother has the financial ability to provide for the child and that the evidence establishes that the father has a job, a home, and pays child support … .

Although the court properly determined that the child “barely knows” the father, we conclude that the court erred in failing to give any weight to the 14-year-old child’s preference to live with the father rather than the mother, where, as here, the record establishes that her age and maturity would make her input “particularly meaningful”… . Matter of Lara … v Sullivan, 818, 4th Dept 7-19-13

 

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