Standard of Review of custody determinations—Effect of changed circumstances during pendency of appeal
 
          The Court of Appeals has held that the court may consider new developments that occur during the pendency of a custody appeal. “To ignore these new developments would exalt the procedural rule, important though it is, to a point of absurdity, and reflect no credit on the judicial process.” Changed circumstances may have particular significance in child custody matters, and the Court may take notice of the new facts and allegations to the extent they indicate that the record before it is no longer sufficient for determining an appellant's fitness and right to custody.1
          In Matter of Michael B.,2 the Court of Appeals was informed during the pendency of the appeal that the appellant was charged with, and admitted, neglect of the children in his custody (not Michael), and that those children had been removed from his home and were again in the custody of the Commissioner of the Social Services. The neglect petitions alleged that appellant abused alcohol and controlled substances including cocaine, and physically abused the children. Orders of fact finding had been entered by Family Court recognizing appellant's admission in open court to “substance abuse, alcohol and cocaine abuse” and an Order of Protection was entered prohibiting appellant from visiting the children while under the influence of drugs or alcohol. The Court of Appeals rejected Appellant's request that it ignore these new developments and grant him custody because matters outside the record cannot be considered by an appellate court. It held that to ignore these new developments would exalt the procedural rule, important though it is, to a point of absurdity, and reflect no credit on the judicial process. It held that changed circumstances may have particular significance in child custody matters,3 and that the Court would therefore take notice of the new facts and allegations to the extent they indicated that the record before it was no longer sufficient for determining appellant's fitness and right to custody of Michael. It remitted the matter to Family Court for a new hearing and determination of those issues.4
          We note that prior to the Court of Appeals decision in Matter of Michael B.,5 appellate courts have considered changed circumstances since the date of the determination appealed from where the circumstances of the case warranted it.6
 
 Endnotes


1 Matter of Michael B., 80 N.Y.2d 299, 317–18, 590 N.Y.S.2d 60, 604 N.E.2d 122 (1992)..

2 Matter of Michael B., 80 N.Y.2d 299, 317–318, 590 N.Y.S.2d 60, 604 N.E.2d 122 (1992).

3 Citing Braiman v. Braiman, 44 N.Y.2d 584, 587, 509, 407 N.Y.S.2d 449, 378 N.E.2d 1019 (1978); Matter of Angela D., 175 A.D.2d 244, 245, 572 N.Y.S.2d 710 (2d Dep't 1991); In re M., 40 A.D.2d 546, 334 N.Y.S.2d 204 (2d Dep't 1972).

4 Matter of Michael B., 80 N.Y.2d 299, 317–318, 590 N.Y.S.2d 60, 604 N.E.2d 122 (1992).

5 Matter of Michael B., 80 N.Y.2d 299, 317–318, 590 N.Y.S.2d 60, 604 N.E.2d 122 (1992).

6 In Braiman v. Braiman, 44 N.Y.2d 584, 590–92, 407 N.Y.S.2d 449, 378 N.E.2d 1019 (1978) the Court of Appeals held that although the joint custody award could not stand, that did not resolve the issue. The Court of Appeals does not make new findings of fact. “Instead, the court reviews the record and chooses only between the findings of the courts below.” The conflicts and contradictions in this record, however, were so severe and so went to the heart of the matter that it was impossible to resolve them without assessments of credibility. The state of this particular record made resolution, of the conflicting facts hopeless. “An added difficulty was that two years had elapsed since the hearing and during that period, the boys had lived with their father; they had been prevented from seeing their mother; and the mother had evidently found it necessary to conceal her whereabouts.” In light of all that had occurred and the critical inconsistencies in the record, a new but expedited hearing was required. On appellate review, the present record was incapable of sustaining a plausible resolution. The order of the Appellate Division was reversed and a new hearing ordered..