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In re Murphy

Supreme Court of New York, Second Department

May 29, 2013

In the Matter of Marcus Murphy, respondent,
v.
Elyssa Lewis, appellant. (Proceeding No. 1) In the Matter of Elyssa Lewis, appellant,
v.
Marcus Murphy, respondent. (Proceeding No. 2) Docket Nos. V-304-11, V-9426/11

Carl D. Birman, Mamaroneck, N.Y., for appellant.

Eve Bunting-Smith, White Plains, N.Y., for respondent.

Steven P. Kmetz, White Plains, N.Y., attorney for the child.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In two related child custody proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Westchester County (Greenwald, J.), entered January 26, 2012, which, after a hearing, granted the father's petition for physical custody of the subject child and, in effect, denied her cross petition for physical custody of the subject child.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for a new hearing and new determination of the petition and the cross petition; and it is further,

ORDERED that pending the new hearing and new determination, the provisions of the order entered January 26, 2012, regarding custody and visitation of the subject child shall remain in effect.

The essential consideration in any custody dispute is the best interests of the child (see Eschbach v Eschbach, 56 N.Y.2d 167, 171). In determining the best interests of the child, the court must evaluate the totality of the circumstances (see id. at 171; Nicholas T. v Christine T., 42 A.D.3d 526, 527; Matter of Berrouet v Greaves, 35 A.D.3d 460, 461). This Court's authority in custody determinations is as broad as that of the hearing court (see Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946, 947), and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we "would be seriously remiss if, simply in deference to the finding of a Trial Judge, " we allowed a custody determination to stand where it lacks a sound and substantial basis in the record (Matter of Gloria S. v Richard B., 80 A.D.2d 72, 76; see Matter of Moran v Cortez, 85 A.D.3d 795, 796; Matter of Marrero v Centeno, 71 A.D.3d 771; Matter of Larkin v White, 64 A.D.3d 707, 708-709).

Under the particular facts of this case, the Family Court improvidently exercised its discretion when it did not sign a subpoena proffered by the mother so as to permit her the opportunity to present certain medical treatment records to rebut the allegations asserted against her. The subject medical treatment records were relevant to the issue of whether an award of physical custody to the father was in the best interests of the subject child, and should have been considered by the Family Court (cf. Matter of Roldan v Nieves, 51 A.D.3d 803, 805).

However, contrary to the mother's contention, the Family Court providently exercised its discretion in declining to conduct an in-camera interview of the child (see Matter of Lincoln v Lincoln, 24 N.Y.2d 270, 273-274; Matter of Martinez v Hyatt, 86 A.D.3d 571, 572; Matter of Galanos v Galanos, 28 A.D.3d 554, 555).

In light of the foregoing and under the circumstances of this case, we deem it appropriate to remit the matter to the Family Court, Westchester County, for a new hearing and a new determination of the petition and the cross petition (see Matter of Fleischman v Hall, 88 A.D.3d 1000, 1001). In the interim and until further order of the Family Court, Westchester County, the provisions of the order entered January 26, 2012, regarding custody and visitation of the subject child, shall remain in effect.

RIVERA, J.P., CHAMBERS, HALL and MILLER, JJ., concur.


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