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Appellate court reverses family court sole physical custody award to mother

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Twice yesterday, the Second Judicial Department of the Appellate Division of the State of New York unanimously reversed a decision by the Westchester County Family Court. (You can read the story of the first reversal here.) The second reversal involved overturning the family court's ruling to give sole physical custody of the children to a mother and instead granting the father's petition for sole physical custody.

The appellate court did affirm the lower court's denial of the father's family offense petitions. However, the lower court had denied the father's petition for sole physical custody of the children and instead gave sole physical custody to the mother. The family court's decision was based on its conclusion that the mother was "marginally the better suited parent." The legal basis for family court decisions however, is the "best interests of the child."

The father had alleged that the mother's live-in boyfriend had sexually abused his underage step-daughter, and therefore it was inappropriate for the children to live in that household. While the boy friend denied the claim in court, "a forensic mental health evaluation prepared by a psychologist affiliated with Westchester Jewish Community Services substantiated the father's claim that a founded report had been filed against" the boyfriend.

The appellate court explained its decision: "Here, the Family Court's award of sole physical custody to the mother lacked a sound and substantial basis in the record. In awarding the mother custody, the Family Court gave undue weight to its finding that the mother would be more likely than the father to foster a meaningful relationship between the subject children and the noncustodial parent. Furthermore, the Family Court failed to give sufficient weight to the forensic mental health evaluation, which indicated that the mother was not suitable for physical custody of the children and to its own finding that it was in the children's best interests for them to remain away from Sherlock [the boyfriend] at all times (cf. Matter of Summer A., 49 AD3d 722, 726-727). Under the totality of the circumstances, including the founded concerns with respect to Sherlock and the attendant risk his relationship with the mother posed to the safety and well-being of the subject children, the best interests of the children would be served by awarding the father sole physical custody (see Eschbach v Eschbach, 56 NY2d at 171)."

The appellate court sent the case back to Westchester County Family Court "for further proceedings to establish an appropriate visitation schedule for the mother and, thereafter, to issue a permanent visitation order."

The entire decision can be read here.

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