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THE JUDGE FAILED TO ADEQUATELY CONSIDER FATHER’S ARGUMENTS OPPOSING THE CHILD’S RELOCATION WITH MOTHER AND FAILED TO MAKE FINDINGS OF FACT IN SUPPORT OF THE AWARD OF SOLE CUSTODY TO MOTHER, MATTER REMITTED (FOURTH DEPT).

The Fourth Department, reversing Family Court in this modification of custody proceeding and remitting the matter, determined the judge failed to consider father’s arguments opposing relocation with the mother, and failed to make findings of fact to support awarding sole custody to mother:

… [T]he court failed “to consider and give appropriate weight to all of the factors that may be relevant to the determination” … . Although the court properly considered facts supporting the conclusion that the child would be better off economically and emotionally in Massachusetts given, among other things, the mother’s family support system there, it failed to consider or evaluate the father’s reasons for opposing the relocation. Specifically, the court did not consider the mother’s immigration status and the father’s concerns that the mother might try to remove the child from the country … . Indeed, the father testified that the mother still had connections to Morocco and had previously expressed a desire to move back there with the child. He also testified about an incident where the mother took the child’s passport from the father without his consent and in violation of the stipulated order. In short, the court failed to consider whether the father had “a good faith basis for opposing a requested move,” which “is a factor bearing on a relocation determination” … .

… [T]he court failed to make any factual findings to support the award of sole custody—both legal and physical—to the mother … . Effectively, the court awarded the mother sole custody of the child on the basis of its determination on the petition insofar as it sought permission to relocate the child. However, it is “well established that the court is obligated ‘to set forth those facts essential to its decision’ ” … . Here, the court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child … . Crucially, as with its analysis on the issue of relocation, the court, in awarding the mother sole custody, did not consider the father’s stated concerns about the mother’s immigration status and whether she intended to remove the child from the country. “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses” … . Matter of Eddaoudi v Obtenu, 2025 NY Slip Op 04430, Fourth Dept 7-25-25

Practice Point: Consult this decision for some insight into the findings an appellate court needs to consider an appeal in a modification of custody proceeding. A judge’s failure to consider a party’s argument and failure to make findings of fact in support of the award of custody renders an appellate review impossible.

 

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