Stent v. Schwartz

Carni and DeJoseph, JJ.

(dissenting). We respectfully dissent. In our view, Family Court erred in granting custody of the subject child to petitioner, and we therefore would reverse the order and dismiss the petition.

While we agree with the majority that the court erred in drawing a negative inference against respondents on the basis that they “declined to testify at the fact-finding hearing” inasmuch as respondents in fact testified at the hearing (see Matter of Raymond D., 45 AD3d 1415, 1415-1416 [2007]), we conclude that the court erred in awarding custody of the child to petitioner because…