WHETHER MOTHER MOVED MORE THAN 40 MILES WAS AN ISSUE IN THIS MODIFICATION OF CUSTODY ACTION; FAMILY COURT TOOK JUDICIAL NOTICE THAT THE MOVE WAS 39 MILES; THE DISSENT ARGUED FAMILY COURT DID NOT DISCLOSE THE BASIS OF THE JUDICIAL NOTICE WHICH PRECLUDED A CHALLENGE TO THE FINDING (THIRD DEPT).

he Third Department determined Family Court properly found that mother had not moved beyond the 40-mile limit imposed by the settlement agreement. The Family Court judge took judicial notice of the distance involved in the move which was determined to be 39 miles. The dissent argued Family Court erred in not specifying the basis for the judicial notice, thereby making it impossible to challenge:

From the dissent:

Although it is well settled that “‘a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of undisputable accuracy'” … , judicial notice of a fact is improper when it is “from a hearsay source or from unidentifiable or nonindisputable sources outside the record or at a time subsequent to the close of testimony” … . Fundamental fairness thus dictates that a court, before it takes judicial notice of a fact, provide the parties with the basis for its notice and “afford the parties the opportunity to be heard as to the propriety of taking judicial notice in the particular instance” … . Otherwise, the determination of whether such fact is or is not “of common knowledge or determinable by resort to sources of indisputable accuracy” cannot be properly tested or reviewed … .

… .Family Court never disclosed the basis for its 39-mile calculation, and it announced that it was taking judicial notice of that “fact” after testimony had concluded and only in the context of its written decision. As such, the parties never had an opportunity to be heard on this issue or dispute the basis for such judicially noticed finding. Nor does the record reflect that Family Court had a factual basis for its conclusion that the relocation provision of the agreement — which the court itself recognized as ambiguous — required that the 40-mile radius be measured between the outermost borders of Deposit and Clarks Summit, rather than from the parties’ respective residences or some other location, particularly since the language of the agreement requires the mother’s residence for the children, and not the boundary line of Clarks Summit, to be within a 40-mile radius from an undetermined location in Deposit. Indeed, the testimony of both parties contradicts the court’s interpretation … . Matter of Lonny C v Elizabeth C., 2020 NY Slip Op 04620, Third Dept 8-20-20