custody hearing in New York

2024"This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 NY3d at 563 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; see Matter of Randall v. Diaz, 208 AD3d at 1331, 174 N.Y.S.3d 605 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 NY3d at 564 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; Matt

2024"This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 NY3d at 563 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; see Matter of Randall v. Diaz, 208 AD3d at 1331, 174 N.Y.S.3d 605 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 NY3d at 564 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; Matt

2024"This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 NY3d at 563 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; see Matter of Randall v. Diaz, 208 AD3d at 1331, 174 N.Y.S.3d 605 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 NY3d at 564 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; Matt

2024"This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 NY3d at 563 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; see Matter of Randall v. Diaz, 208 AD3d at 1331, 174 N.Y.S.3d 605 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 NY3d at 564 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; Matt

2024"This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 NY3d at 563 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; see Matter of Randall v. Diaz, 208 AD3d at 1331, 174 N.Y.S.3d 605 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 NY3d at 564 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; Matt

2024"This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 NY3d at 563 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; see Matter of Randall v. Diaz, 208 AD3d at 1331, 174 N.Y.S.3d 605 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 NY3d at 564 , 36 N.Y.S.3d 411 , 56 N.E.3d 193 ; Matt

2015In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see Matter of Ward v Ward, 89 AD3d at 1519 ).

2015In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see Matter of Ward v Ward, 89 AD3d at 1519 ).

2015Finally, we conclude that the court properly transferred temporary custody of the parties’ children to the father before conducting the custody hearing “inasmuch as the father demonstrated the necessary exigent circumstances warranting the temporary transfer” (Matter of Ward v Ward, 89 AD3d 1518, 1519 [2011]; see Matter of Acquard v Acquard, 244 AD2d 1010, 1010 [1997]).

2015Finally, we conclude that the court properly transferred temporary custody of the parties’ children to the father before conducting the custody hearing “inasmuch as the father demonstrated the necessary exigent circumstances warranting the temporary transfer” (Matter of Ward v Ward, 89 AD3d 1518, 1519 [2011]; see Matter of Acquard v Acquard, 244 AD2d 1010, 1010 [1997]).

2015Finally, we conclude that the court properly transferred temporary custody of the parties’ children to the father before conducting the custody hearing “inasmuch as the father demonstrated the necessary exigent circumstances warranting the temporary transfer” (Matter of Ward v Ward, 89 AD3d 1518, 1519 [2011]; see Matter of Acquard v Acquard, 244 AD2d 1010, 1010 [1997]).

2015Finally, we conclude that the court properly transferred temporary custody of the parties’ children to the father before conducting the custody hearing “inasmuch as the father demonstrated the necessary exigent circumstances warranting the temporary transfer” (Matter of Ward v Ward, 89 AD3d 1518, 1519 [2011]; see Matter of Acquard v Acquard, 244 AD2d 1010, 1010 [1997]).

2017However, in receiving the updated report pursuant to this Court’s order, the Supreme Court should have permitted the plaintiff to cross-examine the foren sic evaluator with respect to the updated report (see 22 NYCRR 202.16 [g] [2]; Ekstra v Ekstra, 49 AD3d 594, 595 [2008]).

2017However, in receiving the updated report pursuant to this Court’s order, the Supreme Court should have permitted the plaintiff to cross-examine the foren sic evaluator with respect to the updated report (see 22 NYCRR 202.16 [g] [2]; Ekstra v Ekstra, 49 AD3d 594, 595 [2008]).

2006Contrary to the mother’s contention, the evidence adduced at the custody hearing fully supports the Family Court’s determination that a substantial change in circumstances had occurred, making modification of the existing custody arrangement necessary for the continued best interests of the subject child (see Matter of Musgrove v Bloom, 19 AD3d 819 [2005]; Matter of Bishop v Livingston, 296 AD2d 602 [2002]; Matter of Haggerty v Herter, 272 AD2d 790 [2000]; see generally Eschbach v Eschbach, 56 NY2d 167 [1982]).

1993The determination of a child’s custody by a hearing court is entitled to great weight on appeal, and should not be set aside lightly, as it is to a large extent a matter of the court’s discretion, depending heavily upon the Judge’s assessment of the credibility of witnesses and the character and temperament of the parties (see, Eschbach v Eschbach, 56 NY2d 167 ).

2014In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] . . . [and] [t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v Heintz, 275 AD2d 971, 971-972 [2000]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Owens v Garner, 63 AD3d 1585, 1585-1586 [2009]).

2014In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] . . . [and] [t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v Heintz, 275 AD2d 971, 971-972 [2000]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Owens v Garner, 63 AD3d 1585, 1585-1586 [2009]).

2016Although the mother correctly concedes that the daughter’s testimony at the custody hearing was inconsistent with parts of her sworn statement, she contends that the statement should not have been admitted because the daughter acknowledged that she gave the statement to the police and testified that everything in the statement was true (see generally People v Buffington, 29 AD2d 229, 231-232 [1968]).

2016Although the mother correctly concedes that the daughter’s testimony at the custody hearing was inconsistent with parts of her sworn statement, she contends that the statement should not have been admitted because the daughter acknowledged that she gave the statement to the police and testified that everything in the statement was true (see generally People v Buffington, 29 AD2d 229, 231-232 [1968]).

2016Even assuming, arguendo, that the court erred in admitting the written statement, such error is harmless considering that the inconsistent statements were explored by the father’s counsel during his cross-examination of the daughter, and the evidence was not particularly prejudicial to the mother (see generally Matter of Beth M. v Susan T., 81 AD3d 1396, 1396 [2011]).

2016Even assuming, arguendo, that the court erred in admitting the written statement, such error is harmless considering that the inconsistent statements were explored by the father’s counsel during his cross-examination of the daughter, and the evidence was not particularly prejudicial to the mother (see generally Matter of Beth M. v Susan T., 81 AD3d 1396, 1396 [2011]).

2014In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] . . . [and] [t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v Heintz, 275 AD2d 971, 971-972 [2000]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Owens v Garner, 63 AD3d 1585, 1585-1586 [2009]).

2014In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] . . . [and] [t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v Heintz, 275 AD2d 971, 971-972 [2000]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Owens v Garner, 63 AD3d 1585, 1585-1586 [2009]).

2014In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] . . . [and] [t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v Heintz, 275 AD2d 971, 971-972 [2000]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Owens v Garner, 63 AD3d 1585, 1585-1586 [2009]).

2014In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] . . . [and] [t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v Heintz, 275 AD2d 971, 971-972 [2000]; see Matter of Vieira v Huff, 83 AD3d 1520, 1521 [2011]; Matter of Owens v Garner, 63 AD3d 1585, 1585-1586 [2009]).

2022"The foregoing rule applies even if there is an existing order of custody concerning th[e] child[ren] unless there is a prior determination that extraordinary circumstances exist" ( Matter of Gary G. v Roslyn P. , 248 AD2d 980, 981 [4th Dept 1998]).

2009Here, there is no indication in the record that, in the history of the parties’ litigation, the court previously made a determination of extraordinary circumstances divesting the mother of her superior right to custody (see id.; see generally Bennett, 40 NY2d at 544 ), and the record is insufficient to enable us to make our own determination with respect to whether extraordinary circumstances exist and, if so, whether the mother established a change in circumstances to warrant a modification of the existing custody arrangement in the best interests of the child (cf. Gary G., 248 AD2d at 981 ;

2014There is no basis to disturb the court’s credibility determinations (see Matter of Nelissa O. v Danny C., 70 AD3d 572, 572 [1st Dept 2010]).

2014There is no basis to disturb the court’s credibility determinations (see Matter of Nelissa O. v Danny C., 70 AD3d 572, 572 [1st Dept 2010]).

2013The record supports the court’s determination that the child’s best interests would be served by awarding petitioner sole custody and sole authority for medical decision-making (see Matter of Frank M. v Donna W., 44 AD3d 495, 495-496 [1st Dept 2007]).

2013The record supports the court’s determination that the child’s best interests would be served by awarding petitioner sole custody and sole authority for medical decision-making (see Matter of Frank M. v Donna W., 44 AD3d 495, 495-496 [1st Dept 2007]).

2011In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal of the order in appeal No. 1 is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005]; see Matter of Darryl B.W. v Sharon M.W, 49 AD3d 1246 [2008]).

2011In any event, even assuming, arguendo, that the court erred in transferring temporary custody to the father, we conclude that reversal of the order in appeal No. 1 is not required because the court “subsequently conducted the requisite evidentiary hearing, and the record of that hearing fully supports the court’s determination following the hearing” (Matter of Humberstone v Wheaton, 21 AD3d 1416 , -2- 1154 CAF 10-01612 1418; see Matter of Darryl B.W. v Sharon M.W., 49 AD3d 1246 ).

1999Contrary to the mother’s contentions, the record supports the conclusion that “extraordinary circumstances” existed (Matter of Bennett v Jeffreys, 40 NY2d 543, 544 ; see also, Matter of Benzon v Sosa, 244 AD2d 659 ; Matter of Carosi v Bloom, 225 AD2d 692 ), and further, that it was in the best interests of the child for him to continue residing with his paternal grandmother, where he had lived for virtually his entire life prior to the custody hearing.

1998Here, the hearing evidence establishes that there were extraordinary circumstances to rebut the presumption in favor of the mother and turn the custody inquiry to one of the best interests of the child (see, Matter of Bennett v Jeffreys, 40 NY2d 543 ).

2026The only factor favoring the mother is the child's express wishes, but that factor should be discounted [*3] considering the significant evidence of parental alienation by the mother, as established in earlier litigation ( see Werner , 142 AD3d at 1352).

2026The only factor favoring the mother is the child's express wishes, but that factor should be discounted [*3] considering the significant evidence of parental alienation by the mother, as established in earlier litigation ( see Werner , 142 AD3d at 1352).