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FATHER’S PETITION FOR MODIFICATION OF CUSTODY BASED PRIMARILY UPON INCREASED TRAVEL TIME BECAUSE OF MOTHER’S MOVE SHOULD NOT HAVE BEEN DISMISSED; THE MAJORITY NOTED MANY REASONING ERRORS AND ORDERED A NEW HEARING IN FRONT OF A DIFFERENT JUDGE; TWO-JUSTICE DISSENT (THIRD DEPT) ​

The Third Department, reversing Family Court, over a two-justice dissent, determined father’s petition for a modification of the custody arrangement based upon mother’s move and the consequent increase in travel times should not have been dismissed. The matter was sent back for a new fact-finding hearing before a different judge:

Applying the correct standard at this procedural stage — providing the father the benefit of every reasonable inference and resolving all credibility questions in his favor … — the father’s proof sufficiently established that, since the entry of the 2012 order, the mother had moved to a different county, which move significantly increased the time and distance required to effectuate custodial exchanges, and that, in the nine years since said order, the mother routinely refused to agree to holiday parenting time for the father. Consequently, the father demonstrated a change in circumstances sufficient to overcome a motion to dismiss … . Matter of Shayne FF. v Julie GG., 2023 NY Slip Op 05767, Third Dept 11-16-23

Practice Point: Increased travel time because of mother’s move supported father’s petition for a modification of custody. The majority found many reasoning errors and ordered a new hearing before a different judge. A two-justice dissent argued the petition was properly dismissed.

 

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