Appeals Court Sets Aside Decision Giving Mother Sole Legal and Physical Custody of Child

A mother had brought a Family Court proceeding requesting sole custody of the parties’ child. The parties had initially been granted joint legal and shared custody of their child. They had also agreed to a “corrected” custody order. The Family Court after a fact finding hearing rendered a decision which found the father had twice violated the prior joint custody order. The Family Court therefore ordered the mother have sole legal and physical custody. The court had noted the father had failed to comply, pursuant to his own testimony, with the provisions of the joint custody order. The court therefore found they should not disturb the finding he was in willful violation of the court order. Based on this willful violation, the Family Court granted the mother’s petition giving her sole legal and physical custody of the parties’ child.

The Appeal

The father had appealed the Family Court’s decision. The Appellate Division of the Third Department, an appeals court, found the relationship between the mother and the father was not so acrimonious as to prevent them from having joint custody. The appeals court also noted the father’s basis for seeking sole custody stemmed not from an expressed inability to get along with the mother but was instead related to her stability. She had documented mental health and alcohol dependency issues. The appeals court in its decision stated neither the father nor the mother showed a sufficient change in circumstances which would cause the modification of the original custody order. The Family Court was therefore mistaken in awarding sole legal and physical custody to the mother. The appeals court reinstated the original joint custody order and sent the case back to the Family Court to work out the details.


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About Elliot S. Schlissel

Elliot S. Schlissel, Esq. has spent more that 45 years representing individuals in matrimonial and family law cases.