Matter of Eliyahu W. v. Sara C.W.

Summary

The Appellate Division, Second Department, reviewed a Family Court custody order involving five children. It dismissed as academic the appeal concerning a child who had reached age 18, affirmed joint physical custody for three children, and modified the order to award the mother primary physical custody of the youngest child while remanding for a new parental-access schedule.

Holdings

1. The Family Court acted within its discretion in denying the mother's application for a mistrial because substantial justice was accomplished.
2. The Family Court did not err by failing to stay the hearing under CPLR 321(c) after granting the mother's former counsel's motion to be relieved.
3. The Family Court's award of joint physical custody of Abraham W., Esther W., and Shifra W. had a sound and substantial basis in the record and was affirmed.
4. The Family Court's award of joint physical custody of Devorah W. lacked a sound and substantial basis in the record; the mother was awarded primary physical custody, with parental access to the father.
5. The appeal from the custody provision concerning Yissochar W. was dismissed as academic because the child reached the age of eighteen.

Questions Presented

1. Whether the Family Court improvidently exercised its discretion by denying the mother's application for a mistrial.
2. Whether the Family Court erred by failing to stay the fact-finding hearing under CPLR 321(c) after relieving the mother's former counsel.
3. Whether the joint-physical-custody determination concerning Yissochar W. was moot because the child reached age eighteen.
4. Whether the joint-physical-custody determination concerning Abraham W., Esther W., and Shifra W. had a sound and substantial basis in the record.
5. Whether the joint-physical-custody determination concerning Devorah W. had a sound and substantial basis in the record and served her best interests.

Disposition

reversed_and_remanded