Morton v. Morton

The petitioner father is seeking physical custody of his son, Jason, and his daughter, Yvonne. Physical custody of Yvonne was granted to the respondent mother pursuant to an order entered in 1985; that order did not, however, determine the custodial status of Jason. The Family Court dismissed the petition. We reverse.

The Family Court applied the incorrect standard in disposing of this petition. The court considered it determinative that there had been no significant change in circumstances since the entry of the earlier order. Instead, the court should have considered the totality of the circumstances, with the best interests of each child being the critical factor (see, Domestic Relations Law §§ 70, 240; Friederwitzer v Friederwitzer, 55 NY2d 91, 94-95; Matter of Coyne v Coyne, 150 AD2d 573, 574).

Under the particular facts of this case, we believe that this error should be remedied by remitting the matter to the Family Court, Orange County, for the taking of any additional evidence the parties may wish to submit and a new determination. We note the absence of any brief on behalf of the children in question. We take this opportunity to call upon all attorneys assigned as Law Guardians to make certain that their clients are adequately represented on appeals of this type (see, Family Ct Act § 1120 [b], [c]; § 241, as amended by L 1988, ch 476). Mollen, P. J., Bracken, Brown and Rosenblatt, JJ., concur.