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THE MAJORITY, LAYING OUT ITS FACTUAL FINDINGS IN GREAT DETAIL, AFFIRMED FAMILY COURT’S MODIFICATION OF CUSTODY RULING ALLOWING MOTHER TO RELOCATE WITH THE CHILD; THE TWO-JUSTICE DISSENT ARGUED THE MAJORITY IGNORED SUBSTANTIAL EVIDENCE WHICH CONFLICTED WITH AND CONTRADICTIED ITS RULINGS, LAYING OUT THAT EVIDENCE IN GREAT DETAIL; ESSENTIALLY THE DISSENT ARGUED THAT THE CONFLICTING AND CONTRADICTORY EVIDENCE IGNORED BY THE MAJORITY DEMONSTRATES MOTHER DID NOT MEET HER BURDEN TO DEMONSTRATE RELOCATION WAS IN THE “BEST INTEREST OF THE CHILD” (FIRST DEPT).

The First Department, over a comprehensive two-justice dissent, affirmed Family Court’s modification of custody ruling allowing mother to relocate to Florida with the child. The dissenters argued the majority ignored evidence which conflicted with its findings, effectively finding relocation was in mother’s best interest, not the child’s. The dissent laid out, in detail, the evidence purportedly ignored by the majority and would have held mother did not meet her burden to prove relocation was in the best interest of the child:

From the dissent:

A parent’s request to relocate with the parties’ child has been described as one of “the knottiest and most disturbing problems that our courts are called upon to resolve” … . Foremost, a court’s role in resolving immensely personal family matters of this nature is to ensure that the final decision is in the best interest of the child and that its findings have a sound and substantial basis in the record, as that is the sine qua non of any credibility determination … . Therefore, the threshold issue here is not whether the Family Court’s credibility determinations should be disturbed as the majority posits. Rather, it is whether there is a substantial basis in the record to support the finding that granting the mother primary physical custody of the subject child and permission to relocate to Florida, served the child’s best interest … . In my opinion, the Family Court’s determination fails on both accounts, as the evidence clearly establishes that a predominant emphasis was placed on those facts and circumstances most likely to serve the mother’s best interest, rather than that of the child, thereby undermining the exact premise set forth in Matter of Tropea ([87 NY2d 727] at 740-741). As the mother has failed to establish that it would be in the child’s best interest to relocate to Florida under the factors set forth in Matter of Tropea …, I respectfully dissent. Matter of Jasmine M. v Albert M., 2025 NY Slip Op 04695, First Dept 8-14-25

Practice Point: In this decision and in Matter of Kaius A. v Abigail H., 2025 NY Slip Op 04692, First Dept 8-14-25, the First Department is addressing concerns with the credibility determinations made by Family Court judges, raising the question whether starkly contradictory but credible proof should be analyzed in the context of whether the party seeking the relief has met the burden of proof.

 

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