You are here: / / FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO...
, , ,

FAMILY COURT, AFTER A NONJURY TRIAL, AWARDED SOLE CUSTODY TO FATHER WHO RESIDES IN FLORIDA; THE CHILDREN APPEALED; THE SECOND DEPARTMENT REVERSED AND AWARDED SOLE CUSTODY TO MOTHER, IN PART BECAUSE FAMILY COURT DID NOT CONSIDER THE WISHES OF THE CHILDREN AGES 12 AND 15 (SECOND DEPT).

The Second Department, in an appeal by the children, reversing Family Court’s order issued after a nonjury trial, determined the record did not support the award of sole custody to plaintiff father who resides in Florida and who indicated during the proceedings he was not seeking residential custody of the children. The Second Department awarded sole custody to defendant mother:

“The court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” … . “In determining an initial petition for child custody, the totality of the circumstances, includes, but is not limited to, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent’s relative fitness, including his or her ability to guide the child, provide for the child’s overall well being, and foster the child’s relationship with the noncustodial parent; and (5) the child’s desires” … . “Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and therefore, deference is accorded to the trial court’s findings in this regard” … . “However, an appellate court would be seriously remiss if, simply in deference to the finding of a trial judge, it allowed a custody determination to stand where it lacked a sound and substantial basis in the record” … .

Here, the Supreme Court’s determination to award sole legal and residential custody of the children to the plaintiff lacks a sound and substantial basis in the record. The plaintiff, who resides in Florida, represented during the proceedings that he was not seeking residential custody of the children. Moreover, while strict application of the factors relevant to relocation petitions … is not required in the context of an initial custody determination, the record does not indicate the court fully considered the impact of moving the children away from the defendant, and the only home they have known, to live with the plaintiff in Florida … . In addition, under the circumstances presented, the court failed to give sufficient weight to the expressed preference of the children, who were 12 and 15 years old, respectively, as of the conclusion of the trial, to reside with the defendant … . Joseph P. A. v Martha A., 2025 NY Slip Op 02562, Second Dept 4-30-25

Practice Point: Here the appellate court reversed Family Court which had awarded sole custody to father after a nonjury trial. It appears that the main basis for the reversal was Family Court’s failure to consider the wishes of the children who were 12 and 15. The children appealed Family Court’s order.

 

You might also like
ROPE WHICH CAUSED PLAINTIFF TO FALL WAS AN OPEN AND OBVIOUS CONDITION KNOWN TO THE PLAINTIFF, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.
Petitioner, Who Was Sentenced to Death in Federal Court, Could Not Be Declared “Civilly Dead” Pursuant to the Civil Rights Law—Paternity Petition Should Not Have Been Dismissed
CONCLUSORY AND SPECULATIVE ALLEGATIONS PLAINTIFF WOULD NOT HAVE LOST ITS DISADVANTAGED BUSINESS ENTERPRISE (DBE) STATUS HAD DEFENDANT ATTORNEYS NOT FAILED TO FILE AN ADMINSTRATIVE APPEAL AND REQUEST A HEARING WERE NOT SUFFICIENT TO SURVIVE A MOTION TO DISMISS PURSUANT TO CPLR 3211 (A) (SECOND DEPT).
PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT).
Order of Protection Reversed–Family Court Did Not Have Subject Matter Jurisdiction—Party Ordered to Stay Away Was Not Related to, a Member of the Household of, or in an Intimate Relationship With, the Subject of the Order of Protection
Son of Sam Law Required Murderer’s Police Pension Be Paid to Daughter and Estate of the Murder Victim
Two-Justice Dissent Argued Termination of Father’s Parental Rights Was Not In the Best Interests of the Child
PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TENANT WAS PRECLUDED FROM ASSERTING A CLAIM FOR BREACH OF THE COVENANT OF QUIET... PLAINTIFF FELL 15 TO 20 FEET SUFFERING A FRACTURED RIB AND A FRACTURED FEMUR...