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FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE TO DETERMINE IT WAS IN THE CHILD’S BEST INTERESTS TO BE WITH FATHER IN THIS TEMPORARY CUSTODY PROCEEDING, ALLEGATIONS OF EXCESSIVE CORPORAL PUNISHMENT REQUIRED A HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined questions of fact about father’s use of corporal punishment required a hearing in this temporary custody matter about whether it was in the child’s best interests to be placed with father:

“[I]n any action concerning custody or [parental access] where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest of the child, together with other factors and circumstances as the court deems relevant in making an award of custody” (…see Domestic Relations Law § 240[1]…). In addition, consideration may be given to the express wishes of older and more mature children, but such wishes are not dispositive … .

As a general rule, “a custody determination should be made only after a full and fair hearing at which the record is fully developed”… . Under the circumstances of this case, the Family Court did not have sufficient evidence before it to reach a sound conclusion that it was in the subject child’s best interests for the father to have temporary custody pending determination of the issue of permanent custody. Throughout the proceedings, there were controverted allegations of excessive corporal punishment by the father against the subject child and the court was informed that the subject child suffers from certain mental health issues that were being treated in Connecticut. Matter of Poltorak v Poltorak, 2018 NY Slip Op 08662, Second Dept 12-19-18

 

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