In the case Chad KK. v. Jennifer LL., 219 A.D.3d 1581 (2023) the Appellate Division
upheld the lower trial court decision as to joint custody holding that the higher Court
will often defer to Family Court’s credibility determinations at trial and will often adopt
their factual findings based upon the fact that the trial court has a superior position at
trial to view the testimony and evaluate the witnesses’ credibility, such that the lower
court’s decision as to custody and visitation was not disturbed as it was based upon a
sound record established at trial. There, in a custody modification case, the Family
Court decided to leave the parties’ joint custody arrangement intact since the evidence
adduced at trial did not evidence level of acrimony that made the prior joint custody
award unworkable, and where the parents had been shown to be able to set aside their
differences in working out issues regarding the children.
But lower courts do sometimes make mistakes that require and warrant the Appellate
Division to reverse the decision especially where no evidence was taken at a fact-
finding trial. So, we can compare this case to the recent 2024 case of Valedon v. Naqvi,
226 A.D.3d 914 (2024) where the Appellate Division Second Department reversed the
trial court’s decision as to custody on the following facts. There, a case was filed by the
Father following the entry of a judgment of divorce, which incorporated the lower court
order of custody and parenting access, where the mother was awarded sole legal and
physical custody of the minor children and father was awarded visitation upon an
Agreement had in the divorce case. The lower court just modified the Divorce Judgment
without first conducting an evidentiary hearing and inquiry into whether the children’s
best interests required a change in the parties’ agreement, The Mother appealed, and
the Appellate Division agreed with her and remitted the case back to the lower court for
a fact-finding hearing.
However, if you are a mother (or father) looking to reverse a trial court decision on
custody, it would be beneficial if you read and understand the new 2024 case of Kaleta
v. Kaleta, 225 A.D.3d 1293 (2024). In that case the Order of the Lower Court was
reversed on appeal after the Appellate Division found that the lower Court’s findings
and decision “lacks a sound and substantial basis in the record..”
This decision is specific to the below facts. In this case there was a post judgment
proceeding where both parties tried to modify the terms of their divorce agreement as to
child custody and both parties sought and wanted an exclusive ward of sole custody.
The lower court determined that the child’s primary physical custody should be with the
Father. The Appellate Court held that the lower court erred by giving too much weight to
the fact that the mother had moved to Syracuse. There, the Appellate Court held in
pertinent part, that “.…Although a parent’s unilateral determination **429 to move a child
away from the other parent would be a factor for a court’s consideration (see Matter of
Tekeste B.-M. v. Zeineba H., 37 A.D.3d 1152, 1153, 830 N.Y.S.2d 415 [4th Dept. 2007]),
the record here does not support the court’s conclusion that the mother intentionally
disregarded the child’s best interests and interfered with the child’s ability to bond with
the father by moving away from the Buffalo area. Instead, the record establishes that,
four years prior to the instant proceeding, the mother relocated with the father’s full
knowledge out of practical necessity, at which time the parties established a plan for
relatively equal access of each parent to the child…..”
The Court went on to state that reliance on this factor alone was not enough to support
a change of custody because it was not contemplated or even realistic to expect that
the mother and child would move back to Buffalo. In conclusion, the court held that the
lower court “…. failed to make “a careful and studied review of all the relevant factors”
(Eschbach, 56 N.Y.2d at 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260), including the child’s
significant ties to the Syracuse area. We remind the court that “ ‘an award of custody
must be based on the best interests of the child[ ] and not a desire to punish a[n
allegedly] recalcitrant parent’ ” (Tekeste B.-M., 37 A.D.3d at 1153, 830 N.Y.S.2d 415;
see Verity v. Verity, 107 A.D.2d 1082, 1084, 486 N.Y.S.2d 505 [4th Dept. 1985], affd 65
N.Y.2d 1002, 494 N.Y.S.2d 96, 484 N.E.2d 125 [1985])….”.
The Court went on to study the lower court record in detail and determined that the
award of custody to the Father was improper where the record lacked a sound
evidentiary basis for such a finding, citing to the case of Matter of DeVore v. O’Harra-
Gardner, 177 A.D.3d 1264, 1266, 112 N.Y.S.3d 380 [4th Dept. 2019]). The Court held
that the lower court should have considered other facts relevant to the children’s best
interests, such as the fact that the mother’s weekday and daytime work schedule was
much more in concert with the child’s schedule, and that the Father failed to present a
specific plan for childcare on the days he was working or traveling.
To conclude, the Appellate Division reversed the lower court order and found that the
decision was not based on consideration of all of the evidentiary facts involved in a best
interests analysis, but rather focused on just one isolated set of facts.
By: Lisa Beth Older, Esq.
Your Manhattan Divorce and Child custody lawyer