Matter of Smith v. Pubnell

Full title: In the Matter of NICOLE SMITH, Appellant, v. WILLIE PUBNELL, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 31, 1998

256 A.D.2d 619 (N.Y. App. Div. 1998)

682 N.Y.S.2d 889

Opinion

December 31, 1998

Appeal from the Family Court, Suffolk County (Freundlich, J.).

Ordered that the order is affirmed, with costs.

There is a sound and substantial basis for the court's changing custody of the parties' three children from the mother to the father ( see, Matter of Carl J.B. v. Dorothy T., 186 A.D.2d 736; see also, Matter of Krebsbach v. Gallagher, 181 A.D.2d 363, 366; Klat v. Klat, 176 A.D.2d 922, 923; Leistner v. Leistner, 137 A.D.2d 499).

The mother's remaining contentions are either not preserved for appellate review or without merit.

Copertino, Thompson and Friedmann, JJ., concur.

Miller, J. P., dissents and votes to reverse the order and remit the matter for further proceedings with the following memorandum:

I must respectfully dissent from the conclusion reached by my colleagues in the majority that there is a sound and substantial basis for the Family Court's custody determination in this case. In my view, the court erred by failing to admit and adequately consider evidence relevant to serious incidents of domestic violence that bear on the father's fitness for custody of three young children ( see, Domestic Relations Law § 240 [1]; Family Ct Act § 651 [b]; Matter of Paul Seth G. v. Antoinette M., 227 A.D.2d 620; Matter of Peters v. Blue, 173 Misc.2d 389; Matter of J.D. v. N.D., 170 Misc.2d 877). Indeed, among other things, the father admitted that he was the subject of an order of protection and that he had been ordered to enter a batterer's program in connection with incidents of abuse directed toward the mother. The Family Court concluded that there was no credible evidence of domestic violence based upon its over-all negative assessment of the mother's credibility. Nevertheless, even without reference to the papers improperly submitted to this Court by the appellant mother, the record is replete with evidence of domestic violence. The court's finding to the contrary is thus not based upon a fair reading of the record. Moreover, in light of this evidence the court should have ordered appropriate forensic evaluations. Accordingly, I would reverse the order awarding custody to the father, and remit this matter for further proceedings.