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MOTHER’S PETITION FOR A MODIFICATION OF THE CUSTODY ORDER SHOULD NOT HAVE BEEN DISMISSED AT THE CLOSE OF MOTHER’S CASE; REMITTED FOR A CONTINUED HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition to modify the custody order should not have been dismissed at the close of the mother’s case:

A party seeking modification of an existing custody order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child  … . The best interests of the child are determined by a review of the totality of the circumstances … . In deciding an application to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom  … .

Here, accepting the mother’s evidence as true and affording her the benefit of every favorable inference, the mother presented sufficient prima facie evidence of a change of circumstances which might warrant modification of custody in the best interests of the child … . There was evidence that the mother had moved from the country of Jamaica and was now living in Staten Island with her husband and family. Further, the mother presented evidence that the stepmother had used corporal punishment on the child between the date of the custody order and the filing of the mother’s petition, despite the fact that the custody order expressly prohibited the parties from using or tolerating the use of corporal punishment on the child. Matter of Campbell v Blair, 2020 NY Slip Op 00270, Second Dept 1-17-20

 

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DEFENDANT’S ATTORNEY’S AFFIRMATION STATING HE NEVER RECEIVED THE... THE EVIDENCE DID NOT SUPPORT THE NEGLECT FINDING (SECOND DEPT).