Samala v. Samala , 765 N.Y.S.2d 523 ( 2003 )

In an action for a divorce and ancillary relief, the defendant mother appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Rock-land County (Weiner, J.), dated September 5, 2002, as granted sole custody of the parties’ child to the plaintiff father.

Ordered that the judgment is reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, without costs or disbursements, and the matter is remitted to the Supreme. Court, Rockland County, for further proceedings in accordance herewith; and it is further,

Ordered that pending the final custody determination, the plaintiff father shall have temporary custody of the parties’ child, Allen, with visitation to the defendant mother pursuant to the terms of the judgment appealed from.

The Supreme Court erred in failing to consider the acts of domestic violence allegedly committed by the plaintiff father in determining whether an award of custody to him was in the best interests of the parties’ child (see Domestic Relations Law § 240 [1] [a] [4]; Matter of Wissink v Wissink, 301 AD2d 36 [2002]; Matter of Finkbeiner v Finkbeiner, 270 AD2d 417 [2000]). The failure to do so requires the Supreme Court to conduct a new hearing and make a new determination.

The defendant mother’s remaining contentions are without merit. Feuerstein, J.P., Friedmann, McGinity and Schmidt, JJ., concur.