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IN THIS MODIFICATION OF CUSTODY PROCEEDING, MOTHER’S PROOF OF THE CHILD’S INJURIES IN FATHER’S CARE AND HER IMPROVED PARENTING SKILLS AND LIVING CONDITIONS WAS SUFFICIENT TO WITHSTAND FATHER’S MOTION TO DISMISS; THE JUDGE APPEARS TO HAVE PREJUDGED THE CASE; MATTER REMITTED TO BE HEARD BY A DIFFERENT JUDGE (THIRD DEPT).

The Third Department, reversing Family Court and remitting the case to a different judge, determined mother’s petition for a modification of custody should not have been dismissed:

“A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child” … .. “Only after this threshold hurdle has been met will the court conduct a best interests analysis” … . “When, as here, Family Court is tasked with deciding a motion to dismiss at the close of the petitioner’s proof, the court must accept the petitioner’s evidence as true and afford the petitioner every favorable inference that could reasonably be drawn from that evidence, including resolving all credibility questions in the petitioner’s favor” … . * * *

After reviewing the record, we find that the mother’s proof regarding injuries suffered by the child during the father’s parenting time, taken together with the mother’s improved parenting abilities and living conditions, demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . * * *

Based on Family Court’s comments regarding its predispositions and its inappropriate comment regarding the mother’s credibility, Family Court appears to have prejudged the case … . Therefore, this matter must be remitted for a new hearing before a different judge. Matter of Nicole B. v Franklin A., 2022 NY Slip Op 06672, Third Dept 11-23-22

Practice Point: Here the evidence of the child’s injuries in father’s care and mother’s improved parenting skills and living conditions was sufficient to support her petition for a modification of custody. Father’s motion to dismiss the petition should not have been granted. The judge’s remarks about mother’s credibility and his encouraging father to make a motion to dismiss indicated the judge had prejudged the case. The matter was sent back to be heard by a different judge.

 

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