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Court Alters Child Visitation Schedule


In a proceeding to determine child custody pursuant to Family Court Act, in which the mother cross-petitioned for modification of an order of the Bronx County Family Court, granting the father child custody of his daughter, the father appeals from a dispositional order of the Nassau County Family Court, which, after a hearing, granted permanent child custody of the couple’s two children to the mother.

A New York Family Lawyer said by petition, the father, a resident of Nassau County, requested legal custody of his son who was born in 1987. In his petition, he asserted that he had been left with physical custody of his son since March 5, 1988, when his wife moved to Bronx by herself. However, the evidence adduced at the subsequent hearing reveals that the mother took her son with her when she left.

In her cross petition, the mother confirmed that until March 1988 she resided with her husband along with their son and their daughter, who was born in 1982. She alleged that she left his husband’s residence in March and that he refused to allow her to take their daughter with her. She requested modification of a prior order of the Bronx County Family Court, pursuant to which custody of her daughter had been awarded to his husband, and further requested permanent custody of her daughter.

A New York Custody Lawyer said that on July 27, 1988, the Nassau County Family Court, granted temporary custody of the son to the mother. The daughter remained in the custody of their father.

After a hearing, the Family Court, in the order appealed from, awarded permanent custody of both children to the mother.

The decision of the Family Court concededly contains certain factual errors which demonstrate that the Family Court misunderstood or misinterpreted certain of the evidence before it. Most importantly, the Family Court was evidently under the misapprehension that the mother’s sister had resided with the parties for several years so as to be in a position to describe their behavior. The finding is not supported by the evidence. Also, a Bronx Family Lawyer said the Family Court attributed certain testimony to the mother’s sister which, to the extent that it appears in the record at all, was given by a different less credible witness. Factual errors contributed to the Family Court’s conclusion that the husband had a history of violent behavior, a finding of fact which is manifestly against the weight of the evidence.

Based upon the Appellate Court’s review of the evidence, the daughter has lived with her father for most of her life, and has been in his sole custody since March 1988. The daughter’s own wish is to remain with her father. The strength of the father’s relationship with his daughter is also reflected in the earlier Family Court order dated May 2, 1986, which transferred custody of the daughter to him upon the mother’s consent. Considering the daughter’s expressed preference, and the fact that the mother previously voluntarily surrendered custody of her daughter to her husband and giving paramount consideration to her daughter’s own best interests, the Appellate Court find that the evidence weighs heavily in support of awarding legal child custody of the daughter to her father.

With respect to the son, a Bronx Custody Lawyer said the Appellate Court finds that, all other things being equal, he should be raised together with his older sister. Aside from this consideration, however, the weight of the evidence established that the husband’s household provides a more stable environment than that of the mother. The evidence in the record, in its totality, established clearly that in terms of attentiveness to the general welfare of the children the father has demonstrated himself to be the better of the two parents and that the interests of both children would best be served by allowing them to be united in his custody.

The Appellate Court note that the decision conforms to the recommendation of the Law Guardian. The Family Court failed to explain its apparent conclusion that the Law Guardian’s opinion was to be disregarded. The opinion of the Law Guardian in this case was very well founded and was entitled to great respect.

Since the Family Court’s child custody arrangement has been significantly altered, it is necessary to remit the matter to it for a determination of an appropriate visitation schedule.

It is ordered that the order entered on August 4, 1989, is reversed, on the law and the facts and as a matter of discretion, without costs or disbursements; and it is further, ordered that the father’s petition for permanent child custody of his son is granted, the mother’s petition for modification of the prior order of the Bronx County Family Court is denied, and the matter is remitted to the Nassau County Family Court, for a determination of the mother’s visitation schedule.

When parents fight over their children, it is always assumed that they do so for the benefit of their children. In every child custody lawsuit, every court’s decision aims to provide every child a better life. If you want to prove that you are the best person to gain custody over your child, make sure that you hire a Bronx County Child Custody Lawyer with the support of a Bronx County Family Lawyer. You can also ask the legal advice of a Bronx County Child Support Attorney from Stephen Bilkis and Associates.

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