AUSTIN v. AUSTIN (1998)

Petitioner commenced this proceeding seeking custody of the two minor children of the parties after respondent had moved with the children to Pennsylvania.   Following a brief hearing, at which only the parties testified, Family Court granted custody to respondent on the condition that she move back to New York within 90 days of the order;  otherwise, custody would be granted to petitioner.   The court failed to explain its reasoning and made no findings of fact to support the determination.   Respondent appeals.

 The court erred in failing “to set forth those facts essential to its decision” (Matter of Graci v. Graci, 187 A.D.2d 970, 971, 590 N.Y.S.2d 377).  “Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court-the court best able to measure the credibility of the witnesses” (Matter of Jose L. I., 46 N.Y.2d 1024, 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059).   Moreover, the record is not sufficient to enable this Court to make the requisite findings of fact (cf., Cohen v. Krantz, 227 A.D.2d 581, 582, 643 N.Y.S.2d 612;  Matter of Guzzey v. Titus, 220 A.D.2d 976, 632 N.Y.S.2d 872, lv. denied 87 N.Y.2d 807, 641 N.Y.S.2d 829, 664 N.E.2d 895).   Consequently, the matter must be remitted to Steuben County Family Court for a new hearing (see, Matter of Miller v. Miller, 220 A.D.2d 133, 137, 644 N.Y.S.2d 579) before a different Judge.   The focus of that hearing must be the best interests of the children, and the court must consider the relevant factors that traditionally affect the best interests of the children (see, Matter of Tropea v. Tropea, 87 N.Y.2d 727, 741, 642 N.Y.S.2d 575, 665 N.E.2d 145;  Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Graci v. Graci, supra ).   In order to determine the relative fitness of the parties, the court should have the benefit of investigative studies of the parties' living situations and, if possible, the opinions of “teachers, counselors, psychologists or other experts” (Fox v. Fox, 177 A.D.2d 209, 211, 582 N.Y.S.2d 863).   In light of our decision, we do not reach the alternative argument of respondent that she was denied effective assistance of counsel.

Order unanimously reversed on the law without costs and matter remitted to Steuben County Family Court for further proceedings.

MEMORANDUM: