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Family Court Act article 10

Two cases of similar nature which involved children were brought before the court for resolution.

The first case is a child custody proceeding pursuant to Family Court Act article 6 wherein the mother appeals from an order of the Family Court, Kings County dated 27 May 2010, which, after a hearing, inter alia, granted the father’s petition for sole custody of the child and denied her cross petition for sole custody of the child.

The criminal court affirms the order, without costs or disbursements.

It was ruled in Matter of Quinones v Gonzalez and Eschbach v Eschbach that the court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child. As custody determinations depend in large part on an assessment of the character and credibility of the parties and witnesses, the Family Court’s findings should not be disturbed unless they lack a sound and substantial basis in the record akin to Eschbach v. Eschbach, Matter of Kreischer v Perry and Matter of Quinones v. Gonzalez.

In the case at bar, the Family Court’s determination that the child’s best interests would be served by awarding sole custody to the father has a sound and substantial basis in the record as was held in analogous cases of Matter of Peoples v Bideau, Pierre–Paul v Boursiquot, Matter of Ramirez v Velez and Matter of Paul v Sawyer. Based on the parents’ testimony and credibility, the Family Court found, inter alia, that the father was more willing than the mother to assure meaningful contact between the child and the other parent as held in Matter of Kreischer v. Perry and Matter of Pappas v Kells. Contrary to the mother’s contention, the Family Court did not improperly fail to consider her allegations of domestic violence, as the Family Court, in effect, resolved the parents’ conflicting testimony in favor of the father and, accordingly, the mother’s allegations were not supported by a preponderance of the credible evidence in accordance with Domestic Relations Law § 240[1], Pierre–Paul v. Boursiquot and Matter of Khaykin v Kanayeya.

The second case is a child protective proceeding pursuant to Family Court Act article 10 wherein the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County dated 5 January 2011, as, after fact-finding and dispositional hearings, found that she had neglected the subject child, and placed the child in the custody of the New York City Commissioner of Social Services.

The court affirms the order of fact-finding and disposition insofar as appealed from, without costs or disbursements.

To be cont………

Contrary to the mother’s contention, the Family Court’s determination that she regularly used marijuana, and committed acts of domestic violence against the father while the father was holding the child in his arms, is supported by a preponderance of the evidence in accordance with Family Ct Act § 1046[b][i]). This evidence was sufficient to support the Family Court’s finding that the mother neglected the child pursuant to Family Ct Act § 1012[f][i][B], § 1046[a][iii], Matter of Ajay Sumert D., Matter of Ndeye D., Matter of Kiara C.,Matter of Gregory S., Matter of Michelle L., Matter of Ayana Jean L., Matter of Aminat O. and Matter of Sade W. Additionally, the Family Court providently exercised its discretion in drawing a negative inference against the mother for her failure to testify at the hearing as ruled in Matter of Tajani B., Matter of Karen Patricia G., Matter of Christopher L.

The court finds that there is no basis in the record to overturn the Family Court’s credibility determination regarding the father’s uncontroverted testimony, which is entitled to considerable deference on appeal based on Matter of Sadiq H., Matter of Andrew B. and Matter of Samantha B. The fact that the father was seeking custody of the child did not require wholesale rejection of his testimony, which implicated him, as well as the mother, in drug use akin to Matter of Angelyna G.

The Family Court providently exercised its discretion regarding the scope and manner of cross-examination of the father by precluding certain questions that were unnecessarily repetitive or argumentative.

The court notes that the mother’s holding that the Family Court erred in admitting into evidence the Domestic Incident Report containing the father’s out-of-court statements made to the police concerning the domestic dispute is correct. However, the Family Court possessed sufficient information to make its findings of fact without the statements, and it did not rely upon the statements in its fact-finding as held in Matter of Perez and Matter of Yolanda.

Kings County Domestic Violence Lawyers and Kings County Child Custody Lawyers at Stephen Bilkis & Associates work together to serve those faced with legal dilemmas like the one discussed above. If you find yourself in a similar situation, please feel free to call our toll free number or visit our office near you.

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