IN RE: Proceeding (2005)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Proceeding, etc., KELVIN R.T., Petitioner-Appellant, v. TONYA C.F., Respondent-Respondent.

Decided: May 19, 2005

SAXE, J.P., MARLOW, SULLIVAN, WILLIAMS, GONZALEZ, JJ.

Geoffrey P. Berman, Mamaroneck, for appellant. Anne Reiniger, New York, for respondent.

Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about February 28, 2002, which granted the petition of the mother and directed, inter alia, that she regain custody of the subject children, unanimously affirmed, without costs.

In view of the evidence that the father physically punished the younger child, and that the younger child had emotional problems which may have been exacerbated by the physical punishment, and in view of the preference in favor of keeping siblings together (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ), the court providently determined that it would be in the children's best interests (see id. at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260) for custody of them to be transferred to their mother, with a direction for ample visitation with the father.

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