Torkildsen v. Torkildsen, 72 A.D.3d 1405 (N.Y. App. Div. 2010). · Go Syfert
Torkildsen v. Torkildsen, 72 A.D.3d 1405 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
42 citation events (42 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Colleen FF. v. Robert FF. (nyappdiv, 2019-11-27)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Colleen FF. v. Robert FF.
N.Y. App. Div. · 2019 · confidence medium
Viewing the record in its entirety, including the testimony from the Lincoln hearing, and deferring to the court's findings, we are unpersuaded by the contention by the mother and the attorney for the children that the court's determination giving the father primary physical custody lacks a sound and substantial basis in the record ( see Matter of Daniel TT. v Diana TT. , 127 AD3d 1514, 1516 [2015]; Matter of Gordon v Richards , 103 AD3d 929, 930-931 [2013]; Matter of Torkildsen v Torkildsen , 72 AD3d 1405, 1407 [2010]; Matter of Putnam v Satriano , 18 AD3d 921, 922 [2005]).
discussed Cited as authority (rule) Matter of Lorimer v. Lorimer
N.Y. App. Div. · 2018 · confidence medium
In view of the foregoing, Family Court's determination of awarding joint legal custody of the children to the parties, with the mother having primary physical custody, is supported by a sound and substantial basis in the record ( see Matter of Basden v Faison , 141 AD3d at 911-912 ; Matter of Gordon v Richards , 103 AD3d 929, 930-931 [2013]; Matter of Torkildsen v Torkildsen , 72 AD3d 1405, 1407 [2010]).
discussed Cited as authority (rule) Matter of Davis v. Church
N.Y. App. Div. · 2018 · confidence medium
Given that Family Court is in a superior position to evaluate testimony and assess witness credibility, we accord great deference to Family Court's custody determinations, and we will not disturb such a determination if it is supported by a sound and substantial basis in the record ( see Matter of Teri v Elliott , 122 AD3d 1092, 1093 [2014]; Matter of Torkildsen v Torkildsen , 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Matter of Colona v. Colona
N.Y. App. Div. · 2015 · confidence medium
Notably, a child’s wishes, which must be expressed and advocated by his or her attorney in a suitable manner (see 22 NYCRR 7.2 [d]), are properly taken into account in determining the child’s best interests, but are not dispositive (see Porcello v Porcello, 80 AD3d at 1134; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]).
discussed Cited as authority (rule) Robert B. v. Linda B.
N.Y. App. Div. · 2014 · confidence medium
As this Court accords great deference to the trial court’s factual findings and credibility assessments, that court’s determination will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Jarren S. v Shaming T., 117 AD3d 1109, 1110 [2014]; Bowman v Engelhart, 112 AD3d at 1188 ; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Robert B. v. Linda B.
N.Y. App. Div. · 2014 · confidence medium
As this Court accords great deference to the trial court’s factual findings and credibility assessments, that court’s determination will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Jarren S. v Shaming T., 117 AD3d 1109, 1110 [2014]; Bowman v Engelhart, 112 AD3d at 1188 ; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Keen v. Stephens
N.Y. App. Div. · 2014 · confidence medium
Given the superior position of Family Court to evaluate the testimony and assess the credibility of witnesses, its determination is accorded great deference and will remain undisturbed so long as it is supported by a sound and substantial basis in the record (see Matter of Joseph G. v Winifred G., 104 AD3d 1067, 1068 [2013], lv denied 21 NY3d 858 [2013]; Matter of Danielle TT. v Michael UU., 90 AD3d 1103, 1103 [2011]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Keen v. Stephens
N.Y. App. Div. · 2014 · confidence medium
Given the superior position of Family Court to evaluate the testimony and assess the credibility of witnesses, its determination is accorded great deference and will remain undisturbed so long as it is supported by a sound and substantial basis in the record (see Matter of Joseph G. v Winifred G., 104 AD3d 1067, 1068 [2013], lv denied 21 NY3d 858 [2013]; Matter of Danielle TT. v Michael UU., 90 AD3d 1103, 1103 [2011]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Parchinsky v. Parchinsky
N.Y. App. Div. · 2014 · confidence medium
While the mother denied some of these claims, Family Court credited the father, and this Court defers to such assessments (see Matter of Darrow v Darrow, 106 AD3d 1388, 1390 [2013]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]).
discussed Cited as authority (rule) Parchinsky v. Parchinsky
N.Y. App. Div. · 2014 · confidence medium
While the mother denied some of these claims, Family Court credited the father, and this Court defers to such assessments (see Matter of Darrow v Darrow, 106 AD3d 1388, 1390 [2013]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]).
discussed Cited as authority (rule) Schnock v. Sexton
N.Y. App. Div. · 2012 · confidence medium
Although not determinative, this conclusion is in accord with the position advanced by the attorney for the child both during arguments on the motion and on this appeal (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]; Matter ofDiffin v Towne, 47 AD3d 988, 992 [2008], lv denied 10 NY3d 710 [2008]).
discussed Cited as authority (rule) Schnock v. Sexton
N.Y. App. Div. · 2012 · confidence medium
Although not determinative, this conclusion is in accord with the position advanced by the attorney for the child both during arguments on the motion and on this appeal (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]; Matter ofDiffin v Towne, 47 AD3d 988, 992 [2008], lv denied 10 NY3d 710 [2008]).
discussed Cited as authority (rule) Saperston v. Holdaway (2×)
N.Y. App. Div. · 2012 · confidence medium
Although a court may consider the effect of a parent’s relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination (see Verity v Verity, 107 AD2d 1082, 1084 [1985], affd 65 NY2d 1002 [1985]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1255-1256 [2009]).
examined Cited as authority (rule) Sullivan v. Sullivan (4×) also: Cited "see"
N.Y. App. Div. · 2011 · confidence medium
“Recognizing the advantageous position of Family Court to evaluate the testimony and assess the credibility of witnesses, we accord great deference to that court’s custodial determination provided that it is supported by a sound and substantial basis in the record” (Mat ter of Torkildsen v Torkildsen, 72 AD3d at 1406 [citations omitted]).
discussed Cited as authority (rule) Rundall v. Rundall
N.Y. App. Div. · 2011 · confidence medium
An initial custody determination is controlled by the best interests of the child, taking into consideration such factors as the parents’ ability to provide a stable home environment for the child, the child’s wishes, the parents’ past performance, relative fitness, ability to guide and provide for the child’s overall well-being, and the willingness of each parent to foster a relationship with the other parent (see Matter of Lynch v Gillogly, 82 AD3d 1529, 1530 [2011]; Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Baker v. Baker
N.Y. App. Div. · 2011 · confidence medium
Great deference is accorded to both Family Court’s assessment of the witnesses’ credibility and its ultimate custody determination (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; Matter of Dana A. v Martin B., 72 AD3d 1136, 1138 [2010]) — particularly where, as here, the court was faced with the difficult task of choosing between two less than perfect parents (see Matter of Lewis v VanWormer, 45 AD3d 1196, 1197-1198 [2007], lv denied 10 NY3d 712 [2008]; Matter of Maheu v Bowen, 26 AD3d 654, 655 [2006]).
discussed Cited as authority (rule) Renee J. v. Aaron J.
N.Y. App. Div. · 2011 · confidence medium
Notably, in light of “the advantageous position of Family Court to evaluate the testimony and assess the credibility of witnesses, we accord great deference to that court’s custodial determination provided that it is supported by a sound and substantial basis in the record” (Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Opalka v. Skinner
N.Y. App. Div. · 2011 · confidence medium
Having concluded that a best interest analysis is warranted, the factors to be considered by Family Court are maintaining stability in the children’s lives, the quality of respective home environments, the length of time the present custody arrangement has been in place, each parent’s past performance, relative fitness and ability to provide for and guide the children’s intellectual and emotional development, and the effect the award of custody to one parent would have on the children’s relationship with the other parent (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]…
discussed Cited as authority (rule) Porcello v. Porcello
N.Y. App. Div. · 2011 · confidence medium
While the position of the attorney for the child is a factor to be considered, it is not determinative (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407 [2010]; Munson v Lippman, 2 AD3d 1252, 1254 [2003]; Matter of Perry v Perry, 194 AD2d 837, 838 [1993]).
discussed Cited as authority (rule) Rikard v. Matson
N.Y. App. Div. · 2011 · confidence medium
Having so decided, we turn to a consideration of what is in the child’s best interests, noting that this Court “accord[s] great deference to [Family Court’s] custodial determination provided that it is supported by a sound and substantial basis in the record” (Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited as authority (rule) Davis v. Davis
N.Y. App. Div. · 2010 · confidence medium
Although the record reflects the existence of a strong bond between the mother and the child, upon our review of the record as a whole and according great deference to Family Court’s custody determination in recognition of its “advantageous position ... to evaluate the testimony and assess the credibility of witnesses” (Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; see Matter of Marchand v Nazzaro, 68 AD3d 1216, 1217 [2009]; Matter of Wentland v Rousseau, 59 AD3d at 823 ; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]), we conclude that Fa…
discussed Cited as authority (rule) Micah NN. v. Kristy NN. (2×) also: Cited "see"
N.Y. App. Div. · 2010 · confidence medium
Family Court found that the mother’s evidence of domestic violence and of the father smoking marihuana, which included both the mother’s testimony and the testimony of the father’s former girlfriend, was not “entirely credible.” Accordingly, in providing the appropriate deference to Family Court’s findings (see Matter of Claflin v Giamporcaro, 75 AD3d 778, 780 [2010], Iv denied 15 NY3d 710 [2010]; Matter of Torkildsen v Torkildsen, 72 AD3d at 1406; Matter of Gast v Gast, 50 AD3d 1189, 1189 [2008]), we find a sound and substantial basis in the record for its determination to grant p…
discussed Cited as authority (rule) Williams v. Williams
N.Y. App. Div. · 2010 · confidence medium
We accord great deference to the trial court’s custody determination, “[r]ecognizing the advantageous position of [Supreme] Court to evaluate the testimony and assess the credibility of witnesses, . . . provided that it is supported by a sound and substantial basis in the record” (Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; see Matter of Marchand v Nazzaro, 68 AD3d 1216, 1217 [2009]; Matter of Wentland v Rousseau, 59 AD3d at 823 ; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]).
discussed Cited as authority (rule) Moore v. Fink (2×)
N.Y. App. Div. · 2010 · confidence medium
However, the record is sufficient to make an initial custody determination in the children’s best interests, considering factors such as “maintaining stability for the children, the children’s wishes, the home environment with each parent, each parent’s past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010] [internal quotation marks and citation omitted]; see Armstrong v Armstrong, 72 AD3d 1…
discussed Cited as authority (rule) White v. White
N.Y. App. Div. · 2010 · confidence medium
We accord great deference to Family Court’s custody determination, “[r]ecognizing the advantageous position of Family Court to evaluate the testimony and assess the credibility of witnesses . . . provided that it is supported by a sound and substantial basis in the record” (Matter of Torkildsen v Torkild sen, 72 AD3d 1405, 1406 [2010]; see Matter of Marchand v Nazzaro, 68 AD3d 1216, 1217 [2009]; Matter of Wentland v Rousseau, 59 AD3d at 823 ; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]).
discussed Cited as authority (rule) Jeker v. Weiss
N.Y. App. Div. · 2010 · confidence medium
In light of Family Court’s ability to evaluate conflicting testimony and assess the credibility of the relevant witnesses first hand, we accord great deference to its factual findings and will not set them aside unless they lack a sound and substantial basis in the record (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]; Matter of Siler v Wright, 64 AD3d at 928 ; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]).
discussed Cited as authority (rule) Moor v. Moor (2×) also: Cited "see"
N.Y. App. Div. · 2010 · confidence medium
We accord great deference to Supreme Court’s factual findings and will not disturb the court’s custodial determination so long as it is supported by a sound and substantial basis in the record (see Matter of Torkildsen v Torkildsen, 72 AD3d at 1406; Matter of Marchand v Nazzaro, 68 AD3d 1216, 1217 [2009]).
discussed Cited "see" Matter of Johnson v. Johnson
N.Y. App. Div. · 2021 · signal: see · confidence high
"Although a court may consider the effect of a parent's relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination" ( Saperston , 93 AD3d at 1272 ; see Matter of Torkildsen v Torkildsen , 72 AD3d 1405, 1406 [3d Dept 2010]).
discussed Cited "see" QUISTORF, MARK v. LEVESQUE, TONIA M.
N.Y. App. Div. · 2014 · signal: see · confidence high
“Although a court may consider the effect of a parent’s relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination” (Saperston, 93 AD3d at 1272 ; see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 ).
discussed Cited "see" Quistorf v. Levesque
N.Y. App. Div. · 2014 · signal: see · confidence high
“Although a court may consider the effect of a parent’s relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination” (Saperston, 93 AD3d at 1272 ; see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
discussed Cited "see" Quistorf v. Levesque
N.Y. App. Div. · 2014 · signal: see · confidence high
“Although a court may consider the effect of a parent’s relocation as part of a best interests analysis, relocation is but one factor among many in its custody determination” (Saperston, 93 AD3d at 1272 ; see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1406 [2010]).
Retrieving the full opinion text from the archive…
In the Matter of Heather M. Torkildsen
v.
Thomas P. Torkildsen, (And Three Other Related Proceedings.)
Appellate Division of the Supreme Court of the State of New York.
Apr 29, 2010.
72 A.D.3d 1405
Peters.
Cited by 33 opinions  |  Published
Peters, J.P.

Appeal from an order of the Family Court of Chenango County (Sullivan, J.), entered November 12, 2008, which, among other things, granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, for custody of the parties’ children.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the married parents of a son (born in 2002) and a daughter (born in 2005). The parties are both long-time residents of New Jersey and have at all times resided as a couple with one of their respective parents. In October 2004, they moved to the Town of Afton, Chenango County along with members of the father’s family to pursue a family venture on a 138-acre farm purchased by the father’s mother and stepfather.

According to the mother, she was verbally degraded by the father over the course of the following years, with the acrimony between the two escalating to physical violence on March 13, 2008. The following day, the mother made arrangements to temporarily take the children to New Jersey to stay with her[*1406] parents. Having suspicions that the mother was planning to leave the area, the father and his mother confronted the mother at the son’s elementary school, at which time the father physically assaulted the mother’s brother-in-law and hung from the mother’s vehicle as it was being driven away.

Immediately thereafter, the mother filed a family offense petition and a petition seeking custody of the children and permission to relocate with them to New Jersey. Family Court issued temporary orders of protection and custody in favor of the mother, who thereafter relocated with the children to her parents’ home in New Jersey. After the father cross-petitioned for custody, Family Court ordered the mother to relocate back to the Afton area pending a full hearing and established a visitation schedule. Following a fact-finding hearing, Family Court awarded the parties joint legal custody with primary physical custody to the mother in New Jersey and liberal visitation to the father.* The father now appeals.

In rendering this initial custody determination, “Family Court was required to consider the best interests of the children by reviewing such factors as maintaining stability for the children, the children’s wishes, the home environment with each parent, each parent’s past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent” (Matter of Smith v Smith, 61 AD3d 1275, 1276 [2009] [internal quotation marks, citations and brackets omitted]; see Matter of Richardson v Alling, 69 AD3d 1062, 1063 [2010]; Matter of Wentland v Rousseau, 59 AD3d 821, 822 [2009]). Where, as here, one parent intends to relocate a distance away from the other parent, the effect of the move factors into the best interests analysis (see Malcolm v Jurow-Malcolm, 63 AD3d 1254, 1255-1256 [2009]; Matter of Siler v Siler, 293 AD2d 826, 828 [2002], appeals dismissed 98 NY2d 691, 720 [2002]; Rolls v Rolls, 243 AD2d 906, 907 [1997]). Recognizing the advantageous position of Family Court to evaluate the testimony and assess the credibility of witnesses, we accord great deference to that court’s custodial determination provided that it is supported by a sound and substantial basis in the record (see Matter of Marchand v Nazzaro, 68 AD3d 1216, 1217 [2009]; Matter of Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]).

The evidence at the hearing established that the mother has[*1407] been the primary caretaker for the children and most attentive to their health and educational needs. Furthermore, she has maintained a steady employment history and received a nearly 50% wage increase upon her transfer to one of her employer’s stores in New Jersey. Evidence was also presented that the mother consistently put her children’s needs ahead of her own and is able to foster a relationship between the father and the children, as demonstrated by her willingness to provide all transportation to and from New York in order to facilitate regular visitation with the father. In contrast, the father lacks stable employment and has a history of mental and physical abuse towards the mother. He regularly made demeaning comments to the mother concerning her weight and facial complexion, threatened to “smack” her and, on one occasion, put her in a choke hold and pushed her to the ground. Family Court also credited the testimony regarding the physical incidents between the parties that precipitated the mother’s move.

The children, who have a significant relationship with both sets of grandparents, would have a stable home residing with either parent in the home of their paternal or maternal grandparents, but they would have increased access to their extended families if residing with the mother in New Jersey. Although the mother’s move to New Jersey will necessarily affect the father’s time with his children, the parties traveled there at least once a month and for all major holidays while living in the Afton area, and the father continues to receive regular and meaningful periods of parenting time under the schedule set by Family Court (see Malcolm v Jurow-Malcolm, 63 AD3d at 1255; Matter of Bodrato v Biggs, 274 AD2d 694, 696 [2000]). In light of all these factors, and giving due deference to Family Court’s findings and credibility determinations (see Matter of Kowatch v Johnson, 68 AD3d 1493, 1496 [2009], lv denied 14 NY3d 704 [2010]), we conclude that the custody award is supported by a sound and substantial basis in the record and we decline to disturb it. Finally, although not determinative, we note that this conclusion is in accord with the Law Guardian’s position both at the hearing and on this appeal (see Matter of Siler v Wright, 64 AD3d 926, 929 [2009]; Matter of Armstrong v Crout, 33 AD3d 1079, 1082 [2006]).

Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed, without costs.

Family Court further found that a family offense had been committed and issued an order of protection against the father. The father does not challenge that determination on this appeal.