In the Matter of Nicole Smith, Appellant, v. Willie Purnell, Respondent

—In a custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Freundlich, J.), entered July 6, 1998, which, inter alia, granted the father sole custody of the parties’ three children.

Ordered that the order is affirmed, with costs.

There is a sound and substantial basis for the court’s changing custody of the parties’ three children from the mother to the father (see, Matter of Carl J.B. v Dorothy T., 186 AD2d 736; see also, Matter of Krebsbach v Gallagher, 181 AD2d 363, 366; Klat v Klat, 176 AD2d 922, 923; Leistner v Leistner, 137 AD2d 499).

The mother’s remaining contentions are either not preserved for appellate review or without merit. Copertino, Thompson and Friedmann, JJ., concur.

Miller, J. P.,

dissents and votes to reverse the order and remit the matter for further proceedings with the following memorandum: I must respectfully dissent from the conclusion reached by my colleagues in the majority that there is a sound and substantial basis for the Family Court’s custody determination in this case. In my view, the court erred by failing to admit and adequately consider evidence relevant to serious incidents of domestic violence that bear on the father’s fitness for custody of three young children (see, Domestic Relations Law § 240 [1]; Family Ct Act § 651 [b]; Matter of Paul Seth G. v Antoinette M., 227 AD2d 620; Matter of Peters v Blue, 173 Misc 2d 389; Matter of J.D. v N.D., 170 Misc 2d 877). Indeed, among other things, the father admitted that he was the subject of an order of protection and that he had been ordered to enter a batterer’s program in connection with incidents of abuse directed toward the mother. The Family Court concluded that there was no credible evidence of domestic violence based upon its over-all negative assessment of the mother’s credibility. Nevertheless, even without reference to the papers improperly submitted to this Court by the appellant mother, the record is replete with evidence of domestic violence. The court’s finding to the contrary is thus not based upon a fair reading of the record. Moreover, in light of this evidence the court should have ordered appropriate forensic evaluations. Accordingly, I would reverse the order awarding custody to the father, and remit this matter for further proceedings.