In the only affirmance in Mondschein v. Mondschein, the Second Department upheld the order of Westchester County Family Court Judge David Klein which, after a hearing, granted a father’s petition to modify the custody provisions of the parties’ divorce (2011) stipulation of settlement, awarding the father sole legal and physical custody of the parties’ two younger children, with supervised visitation to the mother. Affirming Judge Klein, the Second Department noted:
Since custody determinations necessarily depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the Family Court’s findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record.
Here, contrary to the mother’s contention, the appellate court found that Judge Klein had properly considered the totality of the circumstances, and that the record supported his determination that there had been a sufficient change in circumstances requiring a change in custody to protect the best interests of the parties’ two younger children. That record included the hearing testimony and the recommendation of the court-appointed forensic evaluator.
In Burke v. Cogan, the Second Department reversed the determination of Suffolk County Family Court Judge Martha Luft that had dismissed the petition of a mother to modify a prior custody order by awarding her sole residential custody of the parties’ 13 year-old child. The appellate court awarded the mother such custody.
The Second Department found that Judge Luft’s determination that the evidence did not demonstrate a sufficient change in circumstances to warrant a change of custody was not supported by a sound and substantial basis in the record.
Although the determination of the hearing court which saw and heard the witnesses is entitled to great deference, its determination will not be upheld where it lacks a sound and substantial basis in the record.
In Burke, the record reflected that the child’s relationship with the father had deteriorated since the issuance of the prior custody order, and that the mother exhibited a greater sensitivity to the child’s emotional and psychological needs. Additionally, the hearing testimony established that the father denigrated the mother in the presence of the child. Moreover, the attorney for the child advocated that residential custody be awarded to the mother in light of the child’s strong preference to reside with the mother.
In the third November 5th decision, Guiracocha v. Amaro, the Second Department reversed the order of Westchester County Family Court Judge Hal Greenwald that had granted a father’s petition for sole legal and physical custody. The appellate court, instead, granted the mother’s separate petition for sole legal and physical custody of the subject child.
The Second Department noted that, generally, the Family Court’s custody determination is largely dependent upon an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents. As a result, a trial court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record.
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 Second Department found that Judge Greenwald’s determination awarding the father sole legal and physical custody of the child did not have a sound and substantial basis in the record. Specifically, the Second Department disagreed with the Family Court’s conclusion that neither party was the primary caregiver for the child. Instead, the record reflected that the mother was the child’s primary caregiver for the majority of his life, until the father was temporarily awarded residential custody shortly before the custody hearing was conducted.
The evidence in the record also did not support the Judge Greenwald’s findings that the father was “more likely to provide for and nurture the subject child’s emotional, social, physical and intellectual needs,” and to foster the child’s relationship with and ensure meaningful contact with the mother. In addition, although not determinative, the position of the attorney for the child that the child was more bonded to the mother and that she should have residential custody of him, was entitled to some weight. Here, Judge Greenwald made no mention of the position of the attorney for the child, and that position appeared not to have been taken into account at all.
Accordingly, the Second Department remitted the matter to the Family Court to establish the father’s visitation schedule, and thereafter to effectuate of the transfer of the subject child from the custody of the father to the custody of the mother. In the interim, and the appellate court ordered that pending further order of that court, temporary residential custody of the subject child would remain with the father.
Comment: As the father appeared to have had custody for substantially more than a year, and the appellate court determined that this was not in the best interests in the child, expediting such a transfer should certainly be a goal.
In Guiracocha, Neal D. Futerfas, of White Plains, N.Y., represented the for appellant. Naomi R. Duker, of White Plains, served as attorney for the child. Counsel for the father was not stated.
In Mondschein, Joseph R. Miano, of White Plains, N.Y., represented the mother. Ross M. Abelow, of Manhattan, represented the father. Michele L. Bermel, of Chappaqua, N.Y., served as attorney for the children.
In Burke, Marina M. Martielli, of East Quogue, represented the mother. Jill Weinberg-Daly, of Schaub & Daly, LLP, of Riverhead, represented the father. Amy E. King, of counsel to Robert C. Mitchell, of Riverhead, served as attorney for the child.