NY appeals court reverses child custody order

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A state appeals court has reversed a lower court decision that granted a mother sole custody of her child and allowed her to relocate to Massachusetts, despite the father’s objections.

Onondaga County Family Court Judge Lourdes P. Rosario issued the order in April 2024.

The father appealed and the Appellate Division of state Supreme Court, Fourth Department, unanimously reversed the order and remitted the case back to Family Court.

“We agree with the father that Family Court’s determination is deficient and … does not have a sound and substantial basis in the record,” the Fourth Department wrote.

The parents were married in Morocco in 2018.  The father is a naturalized citizen of the United States, and the mother had a green card due to her marriage to the father.

Although he was born in Morocco, the child is a United States citizen through the father.

The family moved to the United States in 2021, initially residing in Connecticut.

The mother’s family lives in Massachusetts, and the father worked at Logan International Airport. By the end of 2021, the father decided to move the family to Onondaga County, but he continued to commute to work in Massachusetts until he left his job in 2023.

The parties separated in 2022 but are not yet divorced.  In March 2023, they stipulated to joint legal and shared physical custody of the child.

Subsequently, the mother filed the petition to move and take sole custody.

“We conclude that the court failed to consider and give appropriate weight to all of the factors that may be relevant to the determination,” the court wrote.

Rosario properly considered facts supporting the conclusion that the child would be better off economically and emotionally in Massachusetts, but she failed to consider or evaluate the father’s reasons for opposing the relocation, the court found.

“Specifically, the court did not consider the mother’s immigration status and the father’s concerns that the mother might try to remove the child from the country,” the panel wrote.

The father testified that the mother still had connections to Morocco and had previously expressed a desire to move back there with the child.  He also testified about an incident where the mother took the child’s passport from the father without his consent.

“In short, the court failed to consider whether the father had a good faith basis for opposing a requested move,” the court wrote.

The court found that, by ruling on the mother’s petition with respect to relocation without considering the father’s concerns, the court “failed to consider the relocation request with due consideration of all the relevant facts and circumstances.”

The court also agreed with the father that Rosario’s ruling “does not have a sound and substantial basis in the record.”

Rosario “failed to make any factual findings to support the award of sole custody — both legal and physical — to the mother,” the court wrote.

“The court did not make any findings with respect to the relevant factors that it considered in making a determination regarding the best interests of the child,” the Fourth Department found.

Rosario failed to consider the father’s concerns about the mother’s immigration status and whether she intended to remove the child from the country, the court found.

“We therefore reverse the order and remit the matter to Family Court to make a determination on the petition, including specific findings as to the best interests of the child, following an additional hearing if necessary to consider the factors that the court previously failed to evaluate,” the court wrote.

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