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THE MAJORITY HELD THE ISSUES WHETHER MOTHER HAD MADE ALLEGATIONS OF DOMESTIC ABUSE IN A SWORN PLEADING OR WHETHER MOTHER HAD PROVEN DOMESTIC ABUSE ALLEGATIONS AGAINST FATHER WERE NOT PRESERVED FOR APPEAL; THE DISSENT ARGUED THE ISSUES WERE PRESERVED AND WOULD REMIT FOR A BEST INTERESTS OF THE CHILD ANALYSIS (CT APP).

The Court of Appeals, over a detailed and comprehensive dissent, affirmed the award of custody to father, finding that the issues raised on appeal by mother were not preserved. Defendant mother argued she had made allegations of domestic abuse in a sworn pleading (petition) and, therefore, pursuant to Domestic Relations Law 240(1)(a), the court was required to consider the effect of the domestic violence on the best interests of the child:

Defendant failed to preserve her arguments regarding Domestic Relations Law § 240 (1) (a). As a result, the parties never litigated, and Supreme Court did not pass upon, or make any findings with respect to, whether a withdrawn family offense petition constitutes “a sworn petition” for purposes of this statute or whether defendant proved allegations of domestic violence “by a preponderance of the evidence” (Domestic Relations Law § 240 [1] [a]) — issues that are essential to the arguments defendant now raises. Record evidence supports the affirmed custody award. * * *

From the dissent:

Because the issue is preserved, I would reverse and remit to Supreme Court for a new best interest of the child analysis consistent with the framework of Domestic Relations Law § 240 (1) (a), and any development of the record as needed. Cole v Cole, 2020 NY Slip Op 03489, CtApp 6-23-20

 

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