Our intermediate appellate courts are empowered to review factual findings as well as legal conclusions in both criminal and civil cases. The authority for this scope of review in criminal cases rests in CPL 470 and in civil cases in CPLR 5501. This commentary examines the question of whether the Appellate Division in the Third Judicial Department has been affording litigants the benefit of this two-tiered analysis in child custody cases.

More than 30 years ago the Court of Appeals clarified the dual nature of intermediate appellate review in New York. In People v. Bleakley and Anesi, 69 N.Y.2d 490 (1987), the defendants had been convicted after a jury trial of first degree rape and other related offenses. On direct appeal, a majority of a split Appellate Division in the Second Judicial Department "articulated the view that their function as an appellate court was not to substitute their judgment for that of the jury on matters of credibility or the weight to be accorded to the evidence presented at trial, but rather to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found that the defendants' guilt had been proven beyond a reasonable doubt." 69 N.Y.2d at 494. Reversing the Appellate Division, the Court of Appeals, through Judge Bellacosa, held: "To determine whether a verdict is supported by the weight of the evidence … the appellate court's dispositive analysis is not limited to that legal test." Id. at 495. Rather, the court detailed how the questions of legal sufficiency and weight of the evidence were distinct issues of law and fact that were to be addressed separately.

When reviewing the legal question of sufficiency of evidence, "the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial." Id. Yet when the weight of the evidence is called into question, the intermediate appellate court must perform a different function. "If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony." Id. (internal quotes omitted). On this analysis, "[i]f it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict [under] CPL 470.20(2)." Id.

The Bleakley decision caused a sea change in the manner in which our intermediate appellate courts subsequently exercised their dual functions of legal and factual review. As of this writing, a Westlaw search discloses that the case has been cited 8,283 times in published decisions. The bipartite analytical methodology of Bleakley has been employed beyond just the criminal sphere in a myriad of intermediate appellate cases including juvenile delinquency proceedings (see, e.g., Matter of Anthony E., 82 A.D.3d 1544 (3d Dept. 2011)); child protective proceedings (see, e.g., Matter of Zoe L., 122 A.D.3d 1445 (4th Dept. 2014)); and even landlord-tenant disputes (see Solow v. Wellner, 86 N.Y.2d 582, 587 (1995); Freeman Street Properties v. Thelian, 6 Misc.3d 127(A) (App. Term 2004) (dissent), rev'd 34 A.D.3d 475 (2d Dept. 2006)).

While other Departments of our Appellate Division have employed a Bleakley-style analysis when called upon to review the weight of evidence in child custody appeals (see, e.g., Matter of Enrique S. v. Genell M. D., 56 A.D.3d 396 (1st Dept. 2008); Matter of Nathan J.H. v. Gwendolyn D.D., 305 A.D.2d 293 (1st Dept. 2003); Matter of Mandry v. Reyes, 294 A.D.2d 142 (1st Dept. 2002); Matter of Bartholomew v. Marano, 2019 WL 3436666 (2d Dept. July 31, 2019); Weisberger v. Weisberger, 154 A.D.3d 41, 51 (2d Dept. 2017); Trinagle v. Boyar, 70 A.D.3d 816 (2d Dept. 2010); Matter of Gilman v. Gilman, 128 A.D.3d 1387 (4th Dept. 2015); Matter of Mercado v. Frye, 104 A.D.3d 1340 (4th Dept. 2013)), the Third Department routinely blurs the distinction between review of legal sufficiency of evidence and weight of evidence in custody cases. Instead of carefully distinguishing between legal and factual review, the Third Department generally employs an amorphous standard. Under the rubric "sound and substantial basis," the court often lumps together a generic review of both facts and law.

The Third Department first embraced the "sound and substantial basis" standard in 1975. In Matter of Ernest LL. v. Rosemary LL., 50 A.D.2d 706, 706, the court held that, in the presence of "numerous errors, mistakes and omissions in the transcript," meaningful review under the standard was impossible. The court therefore reversed and ordered a new trial. From Ernest LL. to the present, the "sound and substantial basis" standard has been routinely invoked by the Third Department in its review of custody determinations.

Though Judge Bellacosa's broad language in Bleakley seems clear in its intended applicability to intermediate appeals of both civil and criminal cases, the two-part Bleakley analysis has never crossed over into the realm of Third Department custody appeals. For example, in Matter of Miller v. Miller, 287 A.D.2d 814, 815 (2001), the Third Department explicitly stated: "Respondent contends that Family Court's custody award was against the weight of the evidence … ." The Appellate Division disagreed with the respondent and stated: "Since Family Court is in the best position to observe the witnesses' demeanor and assess credibility, deference is accorded its factual findings unless they lack a sound and substantial basis in the record." Id. (citations and internal quotation marks omitted). In short, having determined that there was legally sufficient evidence to support Family Court's findings, the Appellate Division denied the appellant any factual review whatsoever. By expressly stating that legal sufficiency of evidence mandated deference to the trial court's factual determinations, the Third Department committed the same error that occasioned the reversal of the Second Department in Bleakley. For just as it is improper to defer to a jury's verdict simply because the evidence is legally sufficient to support the conviction, it is improper to defer to a trial court's factual findings when the weight of evidence—a clearly factual issue—is raised on the appeal.

Matter of Arielle LL., 294 A.D.2d 676 (3d Dept. 2002), is another interesting example of this problem, arising here in the context of a child abuse case. A three-justice majority of the Appellate Division noted that the "[r]espondent's sole assertion on appeal is that Family Court's finding of sexual abuse is against the weight of the evidence." Id. at 677. Again, the court sidestepped the factual issue and held: "According great deference, as we must, to those factual findings made by a court which had the advantage of directly observing the demeanor of all witnesses who testified, we can find no basis upon which to disturb the determination rendered since we find it to be supported by a sound and substantial basis in the record." Id. at 677-78 (emphasis added).

There are other appeals of custody awards in the Third Department where the court implies that deference to the factual determinations of the trial court in custody cases is mandatory if the evidence in the record is legally sufficient to satisfy the "sound and substantial basis" test. See, e.g., Matter of Fletcher v. Young, 281 A.D.2d 765, 767 (2001); Kaczor v. Kaczor, 12 A.D.3d 956, 958 (2004). A recent decision by the Third Department, however, seems to suggest that the distinction between a determination that is not legally sufficient and one that is against the weight of the evidence is no longer merely blurry, but is now indiscernible. The case involved a 13-day trial where the factual questions raised included whether allegations of sexual abuse of a five-year-old girl by her father had been fabricated by the child's mother.

In Matter of Nicole TT v. David UU, 2019 WL 3226724 (July 18, 2019), the child allegedly told her mother that her father had touched her in a sexual manner on a single occasion in January 2016. The mother brought the child to a local hospital for a SANE exam and the child was later interviewed by Child Protective Service (CPS) case workers, a police detective and experts at a sexual trauma center. The experts found credible the child's report that the father had sexually abused her. Criminal charges were brought against the father, the Department of Social Services commenced a child abuse proceeding, and the mother filed both a family offense petition and a custody petition.

Meanwhile, the father repeatedly protested his innocence. During the pendency of the case, the Family Court judge awarded the mother temporary sole custody but allowed the father some visitation under the supervision of the paternal grandmother. In September 2016 the mother brought another family offense petition against the father, alleging that he had sexually abused the child during one of the supervised visits. The child was subjected to another SANE exam and again interviewed by CPS and the experts at the sexual trauma center. Once more, the experts agreed that the child's story was credible. Shortly afterward, however, the father revealed that he had equipped himself with a body camera prior to the supervised visit. He produced the recording of the entire session and proved that nothing improper had occurred.

In reversing Family Court's award of custody to the father, the Appellate Division held "that Family Court's decision and order misstates and mischaracterizes the record evidence and that the determination lacks a sound and substantial basis in the record." The Appellate Division further stated:

We are mindful that the record shows that the father did not sexually abuse the child during the supervised visit in September 2016. That conclusion, however, does not validate Family Court's determination that the January 2016 allegation was a 'fabrication' … . To the contrary, the record evidence demonstrates that the police investigator, therapists and evaluators all believed that the child was telling the truth in January 2016 … . Contrary to the court's erroneous finding, no professional involved in the case testified that the child had been coached or that the mother was consciously trying to alienate the child from the father.

The Appellate Division reversed the trial court's order on the law and remitted the matter to a different judge "for updated fact-finding … and a custody determination that reflects the best interests of the child."

The Appellate Division's determination was expressly based on the legal standard of "sound and substantial basis," and the reversal was ordered "on the law." Yet the reasoning employed by the Appellate Division suggests that it felt that many of the Family Court's factual findings were against the weight of the evidence. For example, the Appellate Division disagreed with the trial judge's finding that the child had not been sexually abused in January 2016 because the experts who interviewed the child agreed that her story was credible. This is clearly a factual and not a legal conclusion. Cf. Matter of Shirreece AA v. Matthew BB, 166 A.D.3d 1419 (3d Dept. 2018).

The ultimate conclusion to be drawn here is a simple one. New York law gives every appellant the right to challenge both the legal sufficiency and factual weight of an adverse trial determination. In child custody cases, this right can best be protected at the intermediate appellate level by a decision and order that separately addresses both the legal issue of whether a determination was supported by a sound and substantial basis in the record as well as the factual issue of whether that determination was against the weight of the evidence. As a practical matter, the legal issue should be addressed first, for if the trial court's determination is not supported by a sound and substantial basis in the record it is subject to reversal as a matter of law. If this legal test is satisfied—and if the issue of weight of the evidence has been raised by the appellant—the Appellate Division should then review the trial record and decide whether the quantum or quality of conflicting evidence is such that it calls into question the soundness of the trial court's factual findings. If and only if this is so, the Appellate Division may then decide whether to defer to the trial judge's assessment of the witnesses' credibility or whether to substitute its fact-finding authority and reverse or modify the lower court's order. The adoption of an approach such as this would best ensure that appellants receive the level of review of both the law and the facts to which they are entitled.

Jim Montagnino is principal court attorney, Rensselaer County Family and Supreme Courts (IDV Part).