Matter of Portillo v Arevalo-Narvaez
Attorneys and Parties
Brief Summary
Family law — modification of child custody under Family Court Act article 6 [governing custody and visitation proceedings].
After a hearing, the Family Court (Kings County) granted the father's petition and awarded him sole physical custody, modifying a prior so-ordered stipulation that had given the mother sole legal and physical custody.
The Appellate Division reversed the Family Court’s order transferring physical custody to the father and remitted for a reopened hearing, while keeping the Family Court’s order in place on an interim basis.
Post-order developments—specifically the father’s relocation to Florida and the child now residing with the mother—rendered the appellate record insufficient to assess the child’s best interests, warranting a remand for consideration of these changed circumstances.
Background
The parties, never married, have one child (born 2018). In a February 10, 2022 so-ordered stipulation, they agreed the mother would have sole legal and physical custody, with a set parental access schedule. On May 25, 2023, the father petitioned to modify the stipulation to obtain sole physical custody. Following a hearing, on February 5, 2024, the Family Court granted the father’s petition.
Lower Court Decision
The Family Court transferred physical custody from the mother to the father after a hearing, effectively modifying the 2022 so-ordered custody stipulation.
Appellate Division Reversal
Reversed on the facts and in the exercise of discretion. The court remitted for a reopened hearing to consider new, material post-order facts (including the father’s move to Florida and the child’s current residence with the mother) and directed a new determination on the father’s petition. The existing February 5, 2024 order remains in effect pending the new determination. The court expressed no view on the ultimate custody outcome.
Legal Significance
Reaffirms that in child custody matters, the best interests of the child—assessed under the totality of circumstances—control, and that significant post-order changes can render an existing record inadequate for appellate review. In such instances, the proper remedy is to reverse and remit for a reopened hearing to evaluate the new facts before deciding custody.
When substantial developments occur after a custody order—such as a parent’s relocation and a change in the child’s residence—the Appellate Division may reverse and remit for a new hearing to reassess best interests, while maintaining interim stability by leaving the existing order in place pending a final determination.