In the Matter of David R. Swinson v. Brewington
| Citation | 925 N.Y.S.2d 96,2011 N.Y. Slip Op. 04479,84 A.D.3d 1251 |
| Parties | In the Matter of David R. SWINSON, Sr., appellant,v.Sherita BREWINGTON, respondent. |
| Decision Date | 24 May 2011 |
| Court | New York Supreme Court Appellate Division |
OPINION TEXT STARTS HERE
Etta Ibok, Brooklyn, N.Y., for appellant.Carol Kahn, New York, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Naomi Buchman and Janet Neustaetter of counsel), attorney for the child.WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In a custody proceeding pursuant to Family Court Act article 6, the father appeals, by permission, from an order of the Family Court, Kings County (Feldman, J.H.O.), dated October 26, 2009, which, without a hearing, awarded temporary custody of the parties' child to the mother.
ORDERED that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, and temporary custody of the parties' child shall remain with the father pending a hearing and determination on the issue of temporary custody of the parties' child or a final determination of custody by the Family Court, Kings County.
The petitioner father and the respondent mother were in a relationship from 2001 to 2004, but were never married. Their son David was born on May 10, 2002. From the time of his birth, David lived with his mother in Brooklyn while his father visited him at least four times a month. There was no court order concerning David's custody.
In the Spring of 2006 the father moved to Tennessee. Beginning in 2007, David spent the summer with his father in Tennessee, and remained during the school year in Brooklyn with his mother. The father also traveled to Brooklyn to visit David during the Christmas holiday season in 2006, 2007, and 2008.
At the end of the summer in August 2009, the father enrolled David in school in Tennessee, rather than return David to his mother in Brooklyn. He also filed a petition for custody. Shortly thereafter, the mother filed a cross petition for custody.
When the parties initially appeared before the Family Court on September 8, 2009, the Family Court decided that David should remain in Tennessee so as not to disturb the status quo until the court received more information, since David had started school on August 10, 2009. Toward that end, the Family Court referred the matter to a judicial hearing officer for an evidentiary hearing.
On October 26, 2009, the parties appeared before the Judicial Hearing Officer, at which time no testimony was taken or exhibits received, although the father indicated he was prepared to go forward. There was only oral argument on the issue of temporary custody. In support of his petition, the father annexed David's file from PS 329, David's former school in Brooklyn, which included his school records and his teachers' notes regarding various behavior issues and interactions with the mother. PS 329's file showed that for the 2008/2009 school year, David had excessive absences, was frequently tardy, and performed poorly. It also documented, inter alia, that from April to June 2009, David used profanity toward his teacher and classmates on numerous occasions, pushed his classmates, and punched himself. The teachers' notes also indicated that the mother was asked to leave the school grounds one morning when she began harassing another child about bothering David, and failed to attend an appointment with school personnel to discuss David's behavior.
During this appearance, the attorney for the child stated, without submitting any evidence in support of her comments, that David was a special needs child and, as such, would not receive the services as provided for by PS 329 pursuant to his Individual Education Plan at his school in Tennessee. She acknowledged that David did not want to choose between his parents because he loved both of them, but it was her position that the mother should be issued a temporary order of custody.
The father objected to the attorney for the child making a “report”...
To continue reading
Request your trial
-
Rosenberg v. Rosenberg
...with the other parent’ " (Jin C. v. Juliana L., 137 A.D.3d 1061, 1062, 27 N.Y.S.3d 675, quoting Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96 [internal quotation marks omitted] ). Here, the Supreme Court's determination to award sole custody of the children to the p......
-
Velez v. Alvarez
...437, 439, 774 N.Y.S.2d 365 ; see Matter of Labella v. Murray, 108 A.D.3d 547, 547, 968 N.Y.S.2d 192 ; Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96 ; Matter of Perez v. Estevez, 82 A.D.3d 1106, 1106, 919 N.Y.S.2d 349 ). “ ‘Since the court has an obligation to make a......
-
Williams v. Bryson
...89, 93–94, 447 N.Y.S.2d 893, 432 N.E.2d 765 ; Cravo v. Diegel, 163 A.D.3d 920, 921, 83 N.Y.S.3d 91 ; Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96 ). Although the mother's relocation to Florida precipitated the commencement of these proceedings, this matter concerns......
-
Devine v. Dominguez
...889, 890, 954 N.Y.S.2d 915 ; see Matter of Tinger v. Tinger, 108 A.D.3d 569, 570, 968 N.Y.S.2d 573 ; Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96 ). Since custody determinations depend to a great extent upon the Family Court's assessment of the character and credib......