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DENIAL OF FATHER’S PETITION FOR CUSTODY WAS NOT SUPPORTED BY THE EVIDENCE (FOURTH DEPT).

The Fourth Department, reversing Family Court, held that the denial of father’s petition for a change in custody (from mother to father) was not supported by the evidence:

Here, the only factor that weighs in favor of respondent mother is the existing custody arrangement, which had been in place for a lengthy period of time … . Although the subject child has a brother at the mother’s house, that is not a factor that favors the mother because “both parties have other children, [and thus] an award of [primary residential] custody to either party would necessarily separate the child at issue from some of her siblings” … .

The remaining factors favor awarding primary residential custody to the father. During the time that the mother had primary residential custody, the child performed poorly at school and experienced a significant increase in her depression … . Additionally, due to the mother’s work schedule, the child was required to arise before 5:00 a.m. and to thereafter be taken to a relative’s house, where the child stayed for two hours before going to school. Also, the mother is admittedly unable to assist the child with school work, or to schedule or attend the child’s medical and mental health counseling appointments. The father, in contrast, is able to provide a more stable home for the child and is currently helping the child with those measures.

Furthermore, the child expressed a desire to reside with the father. Although the “[c]ourt is . . . not required to abide by the wishes of a child to the exclusion of other factors in the best interests analysis” … , we conclude that “the wishes of the [14]-year-old child are . . . entitled to great weight where, as here, the age and maturity [of the child] would make [her] input particularly meaningful” … . In addition, although the position of the AFC is not determinative, it is a factor to be considered … , and the AFC here has supported the child’s wish to live with the father both in Family Court and on appeal. Matter of Alwardt v Connolly, 2020 NY Slip Op 02574, Fourth Dept 5-1-20

 

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