Standard of Review - Appellate Review of Custody Determinations
Standard of Review— Appellate review of Custody Determinations
The general rule is that custody determinations are ordinarily a matter of discretion for the hearing court1 and its decision is entitled to great weight.2 In a matter which turns almost entirely on assessments of the credibility of the witnesses and particularly on the assessment of the character and temperament of the parent, the findings of the nisi prius Court are to be accorded the greatest respect.3 The weighing of the various factors in a custody dispute requires an evaluation of the testimony, character and sincerity of all the parties involved. Generally, such an evaluation can best be made by the trial court which has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary. Appellate courts should be reluctant to substitute their own evaluation of these subjective factors for that of the nisi prius court, and if they do, should articulate the reasons for so doing.4 It has been held that while the hearing court's determination, based as it is upon a firsthand assessment of the parties, their credibility, their character, and temperaments, should be accorded great deference on appeal,5 the authority of this Appellate Division is as broad as that of the hearing court.6 The discretion of the hearing court is not absolute and may be set aside where it lacks “sound and substantial basis in the testimony” or is “opposed to everything presented to the Court.”7 Despite the deference to the findings of the hearing Judge, the hearing court's determination will be reversed where it lacks a sound and substantial basis in the record.8 The question of custody of children, is ordinarily a matter of discretion for the Trial Court and only rarely can be upset by the Court of Appeals on review.9 The function of the Court of Appeals, when the Appellate Division reverses a custody award made by Supreme Court, is, to decide, taking into consideration the various factors on which custody awards depend, which determination of the courts below comports more nearly with the weight of the evidence. In that evaluation respect is to be accorded the Trial Judge's advantage, not available to appellate Judges, in being able to observe the demeanor of the witnesses.10 Where the Trial Court has conducted a full evidentiary hearing, the findings are to be afforded great weight and are not lightly to be set aside.11 Nevertheless, the overriding concern where custody is in issue must be the best interests of the child.12 An appellate court would be seriously remiss if, simply in deference to the findings of a trial judge, it allowed a custody determination to stand where it lacks a sound and substantial basis in the record and, is contrary to the weight of the credible evidence.13
5 Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091 (1985); Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982); Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235 (2d Dep't 1988).
6 Krebsbach v. Gallagher, 181 A.D.2d 363, 364, 587 N.Y.S.2d 346 (2d Dep't 1992); Matter of Louise E. S. v W. Stephen S., supra; Leistner v. Leistner, 137 A.D.2d 499, 524 N.Y.S.2d 243 (2d Dep't 1988).
7 In Krebsbach v. Gallagher, 181 A.D.2d 363, 587 N.Y.S.2d 346 (2d Dep't 1992), the Appellate Division reversed an order of the Family Court which granted the father's petition for sole custody of the parties' two sons as the determination was contrary to the best interests of the children and lacked a sound and substantial basis in the record. The parties were married in 1979. Pursuant to the parties' 1987 separation agreement, which was amended in 1988, and incorporated in the parties' 1988 divorce judgment, they shared joint custody and the children's primary residence was with the mother. The father had visitation every Tuesday afternoon until 8:30 p.m., two of every four week-ends, the month of August and one half of the major holidays and school vacations. The mother remarried in 1988. The father remarried in 1990. In 1989, the father petitioned the Court for sole custody. Forensic examinations were conducted and a hearing on custody was commenced in 1990. After several days of testimony, the parties stipulated to adjourn the hearing pending therapy sessions with a court-appointed psychiatrist. The hearing resumed in 1992. Thereafter, Family Court transferred custody to the father. The Appellate Division It is well settled, furthermore, that the courts will not disrupt sibling relationships unless there is an overwhelming need to do so. It further held that, contrary to the Family Court's determination, the mother was a loving and caring parent who, with her second husband, established a comfortable and stable family environment within which to raise the children. The evidence showed the children were doing well in school, enjoyed playing with their friends in the neighborhood in which they lived and were active in extracurricular activities and loved their stepbrothers. Both boys, during an in-camera interview, indicated a preference to stay with their mother. There was nothing in the record to indicate that the mother intentionally interfered with visitation or that her conduct rose to such level that she should be deprived of custody. There was no evidence that the mother and her second husband attempted to alienate the boys from their father. The Court-appointed psychologist testified that the mother's parenting skills improved during the course of therapy. In contrast, the father was manipulative and had a controlling personality and was not content unless he had his own way. Both the psychologist and the Law Guardian recommended against a change of custody. The Appellate Division held that Family Court's disregard for the recommendations of these two impartial observers were inexplicable in this case.
8 Krebsbach v. Gallagher, 181 A.D.2d 363, 364, 587 N.Y.S.2d 346 (2d Dep't 1992); Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411 (2d Dep't 1981); see also, Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235 (2d Dep't 1988).
9 In re T. (State Report Title: In re Darlene T.), 28 N.Y.2d 391, 322 N.Y.S.2d 231, 271 N.E.2d 215 (1971); Bunim v. Bunim, 298 N.Y. 391, 83 N.E.2d 848 (1949).
10 Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 488 N.Y.S.2d 637, 477 N.E.2d 1091 (1985).
11 Ira K. v. Frances K., 115 A.D.2d 699, 497 N.Y.S.2d 685 (2d Dep't 1985).
12 See Domestic Relations Law, §§70, 240; Obey v. Degling, 37 N.Y.2d 768, 375 N.Y.S.2d 91, 337 N.E.2d 601 (1975); Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976); Barry W. v. Barbara K., 55 A.D.2d 607, 389 N.Y.S.2d 624 (2d Dep't 1976).
13 Gloria S. v. Richard B., 80 A.D.2d 72, 437 N.Y.S.2d 411 (2d Dep't 1981); Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235 (2d Dep't 1988).