Finkbeiner v. Finkbeiner

270 A.D.2d 417, 705 N.Y.S.2d 268, 2000 N.Y. App. Div. LEXIS 2964

Opinion

—In a custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Kent, J.), dated March 11, 1999, which awarded custody of the child Kyle to the petitioner father.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a new hearing in accordance herewith; and it is further,

Ordered that pending a new determination made after a new hearing, custody of the child Kyle shall remain with the father.

The Family Court erred in failing to consider the alleged acts of domestic violence committed by the father in determining whether an award of custody of the child to the father was in the child’s best interests (see, Domestic Relations Law § 240 [1] [a] [4]). The failure to do so requires the Family Court to conduct a new hearing and make a new determination.

In light of our determination, we do not reach the mother’s remaining contentions. Ritter, J. P., Altman, Krausman and McGinity, JJ., concur.