Daghir v. Daghir

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The Appellate Division properly reversed the order of Family Court for error of law. The Family Court had based its decision only on a balancing of the interests of the husband and the wife without making any determination as to the best interests of the children — the legally dispositive issue. Because the Family Court did not consider this issue it can be said, as did the Appellate Division, that the Family Court erred as a matter of law. The appellate court then proceeded to exercise its fact-finding authority and responsibility and determined that the best interests of the children would be served by prohibiting their removal from New York State and awarding temporary custody to the father during the mother’s absence from the State for the purpose of giving effect to the father’s right of visitation. This is not, therefore, a classic custody case in which we are often called on to choose between differing factual assessments as to the best interests of the children (cf. Eschbach v Eschbach, 56 NY2d 167). In this instance we would disturb the disposition at the Appellate Division only if we were to conclude that it was erroneous as a matter of law. No such conclusion can be drawn on the record before us (cf. Priebe v Priebe, 55 NY2d 997; Weiss v Weiss, 52 NY2d 170).