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Modification of Custody Reversed

The Second Department reversed Family Court’s modification of a custody arrangement (changing custody from mother to father), finding there was no sound and substantial basis for the modification in the record. There was evidence that the father induced the mother to agree to allow him to have custody of the child while she recovered from surgery by falsely stating the arrangement would be temporary:

Upon weighing the appropriate factors (see Eschbach v Eschbach, 56 NY2d 167), we find that the Family Court’s determination that the best interests of the child would be served by remaining in the father’s physical custody lacked a sound and substantial basis in the record, and that the child’s best interests will be served by awarding the mother sole physical custody of the child. The Family Court failed to give sufficient weight to the mother’s testimony, which it credited, that she only intended for the father to have custody of the child temporarily while she underwent a hysterectomy and moved from Washington to Colorado with her new husband. The record here shows that the mother, who stays at home to care for her children, has been the primary caregiver throughout the child’s life, while the father had limited involvement with the child until the mother transferred custody to him …. Furthermore, while living with her mother, the child thrived both at home and at school … .  * * * The Family Court also erred in finding that the mother replaced the “father figure” in the child’s life. The record contains no evidence to support a finding of parental alienation against the mother.

The Family Court also failed to give sufficient weight to the fact that the child’s relationship with her half-siblings, who reside with the mother, will continue to be disrupted if she remains in the father’s care, as the record demonstrates that the child and her half-siblings have a close and healthy relationship. Courts will not disrupt sibling relationships unless there is an overwhelming need to do so… . Matter of Shannon J v Aaron P, 2013 NY Slip Op 07733, 2nd Dept 11-20-13

 

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