By: Daily Record Staff//October 20, 2015
By: Daily Record Staff//October 20, 2015//
Appellate Division, Fourth Department
Custody – Change in Circumstances
Motion to Dismiss – Abdication of Primary Caregiver Role
McClinton v. Kirkman
Appealed from Family Court, Onondaga County
Background: The petitioner mother commenced a proceeding seeking to modify a prior order to which the respondent father had sole custody of the parties’ child. She appealed from the dismissal of her complaint.
Ruling: The Appellate Division reversed. The court held that when a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference. Using this standard, the Appellate Division concluded that there was prima facie evidence of a change of circumstances that would warrant a modification of custody. This included documentary evidence established through her testimony that the child was living with the paternal grandmother while the father lived elsewhere and that the father abdicated his role as primary caregiver.
John M. Wesley of the Frank H. Hiscock Legal Aid Society for the petitioner-appellant; Christopher E. Burke, attorney for the child