One rarely reads custody decisions in search of controlling black-letter legal principles. Most custody cases turn on the trial court’s view of the facts as they emerge in a setting in which “there can be no absolutes.” Eschbach v. Eschbach, 56 N.Y.2d 167, 171 (1982). Notwithstanding this amorphous milieu, custody decisions remain worthy of close study to develop a working knowledge, a sixth sense really, of the relevant factors and the combinations of factors that are exerting influence on judicial thinking. The recent decision of the Appellate Division, Third Department, in Montoya v. Davis, 156 A.D.3d 132 (2017) presents an interesting example of the interaction of custody factors. It also presents some anomalies that raise questions regarding the consistency of appellate review of custody decisions.

Facts of the Case

The parties are the parents of a son born in 2006. From the birth of the child until 2009, the mother and father lived separately in Suffolk County. In 2009, mother and son moved to Columbia County and the father relocated to North Carolina. An October 2009 order was entered in the Columbia County Family Court, based upon agreement of the parties, providing that the mother would have “custody” and the father would have such visitation as the parties could mutually agree. In January 2012 an order was entered restricting him, for reasons unspecified, to “therapeutically supervised” visitation. As a consequence, over the next several years, the father had a total of three such visits with the child.

The Forensic Evaluation