The Third Department, reversing the custody determination and remitting the matter for another hearing before a different judge, determined the judge mischaracterized the evidence and exhibited bias in favor of father:
We agree with the mother and the attorney for the child that Family Court’s decision and order misstates and mischaracterizes the record evidence and that the determination lacks a sound and substantial basis in the record. For example, the court determined that a “curious” exchange between the child and a therapist “tended to suggest that the child was confused about her feelings toward her father,” characterized the testimony by the mother’s forensic psychologist who deemed the mother mentally fit as a “brief interlude of comic relief,” and lauded the father’s willingness to undergo penile plethysmograph testing — characterized as “a colonoscopy of the soul” — as “speak[ing] volumes to his actual innocence.” The court went so far as to criticize the forensic expert’s testimony concerning the September 2016 visitation as an example of blending incidents by commenting, “The only blending here . . . is that of pseudoscience with the world’s oldest profession.” The record does not support any of this unfortunate and bizarre commentary.
It is concerning that Family Court wholeheartedly credited the father’s testimony, viewed most — if not all — of the evidence in a light least favorable to the mother … and diminished the evidence of domestic violence perpetrated by the father against the mother in the child’s presence. Matter of Nicole TT. v David UU., 2019 NY Slip Op 05729, Third Dept 7-18-19