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Timothy M. Tippins

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.

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