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CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL. 

The First Department, reversing Family Court, determined mother, not father, should be awarded sole legal custody of the child:

The Family Court Judge presiding over the trial of this complex and long-running custody matter was clearly concerned with the child’s best interests and wrestled with concerns about the mother’s history of mental health issues, and the effect on the child of a “temporary” award of custody to the father, issued years prior to assignment of the case to the trial judge. However, a thorough review of the record does not provide a sound and substantial basis for the award of custody to the father, and requires an award of custody to the mother. * * *

In its award of custody to the father, the Family Court erred in several respects. First, it gave substantial weight to the fact that the father had temporary custody of the child for four years and nine months. This fact should not have been a basis, without more, for a final custody award. * * *

Secondly, the Family Court gave excessive weight to the parties’ financial circumstances, noting that their finances favored the father because the father works, and the mother is unemployed and receives Supplemental Security Income (SSI). * * *

Third, there is no support for the Family Court’s finding that the neutral forensic evaluator “made an initial superficial assessment of the parties at the commencement of his evaluative process, cast his lot with [the mother], and worked from that point to present his findings in her favor.” * * *

Fourth, Family Court’s concern about the mother’s mental health history is understandable, but its conclusions disregard crucial evidence and its determination is not in the child’s best interests. In March 2015, when the trial was completed, the mother was in remission, had not been hospitalized since November 2010, and, in the five years since then, had been compliant with treatment by her psychiatrist and therapist. * * *

Fifth, [the child’s]  close relationship to her siblings, all of whom reside with her mother, also weighs in favor of awarding custody to the mother, since “the stability and companionship to be gained from keeping the children together is an important factor for the court to consider” in making a custody determination …, because “[y]oung brothers and sisters need each other’s strengths and association in their everyday and often common experiences, and to separate them, unnecessarily, is likely to be traumatic and harmful” … . …

Finally, Family Court improperly considered this a relocation case, governed by Matter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]). However, since there has been no prior custody order, Tropea does not govern, and relocation should have been considered as one factor in determining the child’s best interests … . Matter of Michael B. (Lillian B.), 2016 NY Slip Op 08101, 1st Dept 12-1-16

 

FAMILY LAW (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)/CUSTODY (CUSTODY AWARD REVERSED, FACTORS ERRONEOUSLY RELIED UPON BY FAMILY COURT EXPLAINED IN DETAIL)

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