Opinion
2002-09612
Submitted September 23, 2003.
October 14, 2003.
In an action for a divorce and ancillary relief, the defendant mother appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Rockland County (Weiner, J.), dated September 5, 2002, as granted sole custody of the parties' child to the plaintiff father.
Ellen B. Holtzman, Nanuet, N.Y. (Robert S. Sunshine of counsel), for appellant.
Jeffrey B. Yanowitz, New City, N.Y., for respondent.
Before: SANDRA J. FEUERSTEIN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for further proceedings in accordance herewith; and it is further,
ORDERED that pending the final custody determination, the plaintiff father shall have temporary custody of the parties' child, Allen, with visitation to the defendant mother pursuant to the terms of the judgment appealed from.
The Supreme Court erred in failing to consider the acts of domestic violence allegedly committed by the plaintiff father in determining whether an award of custody to him was in the best interests of the parties' child ( see Domestic Relations Law § 240[a][4]; Matter of Wissink v. Wissink, 301 A.D.2d 36; Matter of Finkbeiner v. Finkbeiner, 270 A.D.2d 417). The failure to do so requires the Supreme Court to conduct a new hearing and make a new determination.
The defendant mother's remaining contentions are without merit.
FEUERSTEIN, J.P., FRIEDMANN, McGINITY and SCHMIDT, JJ., concur.