Matter of St. Sume v. Herrera; Matter of Herrera v. St. Sume
Attorneys and Parties
Brief Summary
Family law—child custody and parental access under Family Court Act article 6 [governs custody and visitation proceedings in Family Court].
After a hearing, the Family Court awarded the father sole legal and physical custody of both children, denied the mother’s custody petition, and gave the mother limited parental access without specifying additional summer/holiday time.
The Appellate Division modified the order to add a provision awarding the mother additional parental access during summer months, school holidays and vacations, and legal holidays not falling on a Friday or Monday, and remitted for a specific schedule.
Parental access is a joint right and must be frequent and regular; the order’s silence on summer/holiday parenting time warranted a defined schedule. The custody award to the father was otherwise supported by the record, including stability and his role as primary caregiver and his willingness to foster the children’s relationship with the mother.
Background
The parties, never married, have a son and a daughter. In August 2017, each parent petitioned for sole legal and physical custody of the son; in August 2018, the father petitioned for sole legal and physical custody of the daughter, all under Family Court Act article 6 [governs custody and visitation proceedings in Family Court]. In 2019, on consent, the Family Court issued temporary joint legal custody, with physical custody of the son to the father and of the daughter to the mother. By November 29, 2021, temporary legal and physical custody of both children was awarded to the father. After a full hearing, the court issued an April 12, 2024 order granting the father sole legal and physical custody, denying the mother’s petition, and awarding the mother limited parental access without addressing additional time during summers, school holidays/vacations, and certain legal holidays. The mother appealed, also challenging the lack of an in camera interview of the children and the absence of a forensic evaluation.
Lower Court Decision
The Family Court (Kings County) determined that the father should have sole legal and physical custody of both children and that the mother would have limited parental access. The order did not specify additional summer/holiday parenting time. The court did not conduct an in camera interview of the children or order a forensic evaluation.
Appellate Division Reversal
Affirmed as modified. The Appellate Division held that the best-interests determination awarding the father sole legal and physical custody had a sound and substantial basis: the father had been the primary caregiver for most of the children’s lives, promoted stability, and was more likely to foster the children’s relationship with the mother. The court rejected the mother’s arguments regarding an in camera interview (unpreserved and, given the children’s young ages and lack of request by the parties or the attorney for the children (AFC), a provident exercise of discretion) and a forensic evaluation (unpreserved and unnecessary on this record). However, because parental access must be frequent and regular, and the order was silent on summer months, school holidays/vacations, and legal holidays not on a Friday or Monday, the court modified the order to award the mother additional access during those times and remitted for a specific schedule consistent with the children’s best interests.
Legal Significance
Reaffirms that in custody determinations grounded in the best interests of the child, appellate courts will defer to trial-level credibility findings and stability considerations, especially where a parent has been the primary caregiver and fosters the other parent’s relationship. Clarifies that courts should delineate specific parenting-time schedules for summers and holidays to ensure frequent and regular parental access absent extenuating circumstances. Confirms the discretionary nature of in camera interviews of young children and of ordering forensic evaluations, particularly where not requested and where the record is sufficient.
Custody to the primary, more stable caregiver was upheld, but the parenting plan must include specific, meaningful summer and holiday access for the noncustodial parent; in camera interviews and forensic evaluations remain discretionary and unnecessary when the record suffices.