Matter of Sherab X. v. Michelle Y.: Stability, Proof of Domestic Violence, and Limits on Expanding the Record in Custody Modifications

I. Introduction

The Appellate Division, Third Department’s decision in Matter of Sherab X. v. Michelle Y., 2025 NY Slip Op 07055 (Dec. 18, 2025), is a custody-modification case that operates on three important planes:

• It reaffirms the centrality of stability and educational continuity when both parents can offer generally suitable homes.
• It clarifies the standard for considering domestic violence allegations in custody determinations—emphasizing that such allegations must be proven by a preponderance of the evidence to affect the best-interests analysis.
• It draws a clear line on appellate practice, holding that parties may not use appellate briefs (with website links and other materials) to expand the evidentiary record, and narrowing when the Court will invoke judicial notice of new facts.

The case arises from a dispute between divorced parents over the primary residence of their minor child, born in 2018. After an initial joint physical custody arrangement, the parties informally shifted to a de facto arrangement in which the child primarily lived with the father. The Family Court (Sullivan County, McGinty, J.) formalized this arrangement, and the mother appealed, raising issues of domestic violence, her improving medical condition, school quality, and alleged ineffective assistance and judicial bias. The Third Department affirmed.

Beyond the immediate custody outcome, the opinion is notable for its treatment of (1) uncorroborated domestic violence allegations, (2) the evidentiary treatment of school-district comparisons, (3) the very limited scope of appellate “judicial notice” to supplement the record, and (4) the stringent standard for setting aside a custody order based on claimed ineffective assistance of counsel or attorney for the child.

II. Summary of the Opinion

The Third Department affirmed Family Court’s order awarding:

• Joint legal custody to both parents,
• Primary physical custody to the father, and
• Parenting time to the mother on alternating weekends plus one weekday after-school or dinner visit.

Because the mother did not contest that “a change in circumstances” had occurred since the 2021 custody order, the only live issue on appeal was whether the modified arrangement was in the child’s best interests.

The Appellate Division held that:

1. The father had established a stable, loving household where the child had been living primarily since late 2021, supported by extended family, a nearby preschool, and consistent medical and educational care.
2. Although the mother has suitable housing, loves the child, and claimed improved health after a diagnosis of systemic lupus, her assertions about her medical condition and the comparative superiority of her school district were unsupported by objective evidence in the record.
3. The mother’s allegations of domestic violence, based solely on her “self-serving testimony,” were not proven by a preponderance of the evidence, so the court was not required to give them weight in its best-interests analysis.
4. Stability and continuity—especially remaining in the same school district where the child was thriving—supported keeping the child primarily with the father.
5. The mother’s attempt to submit website-based materials in her appellate brief about school quality and her illness was an improper effort to expand the record. Those materials were not “new facts” warranting judicial notice but information that could and should have been presented below.
6. The mother’s claims of ineffective assistance of counsel, judicial bias, and ineffective assistance of the attorney for the child were either unpreserved or meritless. The record supported a finding that she received meaningful representation.

Accordingly, the Appellate Division deferred to Family Court’s credibility determinations and concluded that the record provided a “sound and substantial basis” for the custody award in the father’s favor.

III. Factual and Procedural Background

A. The Original Custody Arrangement

The parties are divorced parents of a child born in 2018. A 2021 judgment of divorce—incorporating but not merging a settlement agreement— provided for:

• Joint legal custody and
• Joint physical custody on an alternating weekly basis.

Thus, on paper, both parents shared decision-making authority and near-equal physical time with the child.

B. The De Facto Shift to Primary Residence with the Father

After the divorce, the parties informally altered this arrangement. Following conflict between the child and the maternal grandmother— who was also the mother’s primary caregiver due to the mother’s lupus diagnosis—the parties agreed that the child would:

• Reside primarily with the father, and
• Spend alternate weekends with the mother.

This revised schedule continued “for an extended period,” effectively creating a stable, de facto primary residence with the father.

C. Cross-Petitions for Modification and Related Proceedings

Eventually, each parent sought to formalize competing versions of the arrangement by petitioning under Family Court Act article 6:

• The father’s petition: sought primary physical custody, effectively asking the court to formalize the status quo where the child principally resided with him.
• The mother’s petition: sought sole legal and primary physical custody of the child.

The mother also filed:

• a family offense petition, and
• a violation petition,

apparently grounded in allegations of domestic violence and noncompliance with existing court orders. The opinion does not detail the resolution of these auxiliary petitions but indicates they were heard together with the custody modification issues.

Pending resolution of these competing petitions, the parties agreed in mediation to continue the arrangement whereby the child primarily resided with the father.

D. The Hearing and Lincoln Hearing

Family Court conducted:

• a fact-finding hearing with testimony from both parents and the paternal grandparents, and
• a Lincoln hearing—an in camera interview of the child conducted by the judge without the parents present, designed to elicit the child’s wishes and perspectives in a less intimidating setting.

After considering all of the evidence, Family Court awarded primary physical custody to the father with specified parenting time for the mother, while maintaining joint legal custody.

E. The Appeal

The mother appealed, arguing, among other things, that:

• The child should attend kindergarten in her school district, which she asserted had a superior curriculum and after-school offerings.
• Her health had improved sufficiently to resume primary caregiving.
• Domestic violence by the father should have weighed against awarding him primary physical custody.
• Her trial counsel was ineffective for failing to present more robust evidence (e.g., school-district comparisons, medical documentation).
• The Family Court judge and the attorney for the child were biased or ineffective.

The Third Department rejected all of these arguments and affirmed.

IV. Legal Framework

A. Custody Modification under Family Court Act Article 6

A party seeking modification of a prior custody order bears the burden of showing:

1. A change in circumstances since entry of the prior order, and
2. That modification is in the best interests of the child.

Here, the mother did not dispute that circumstances had changed; the prior joint physical custody arrangement had, in practice, been replaced by a long-standing primary residence with the father. Thus, the Appellate Division framed “the principal question” as whether the contested modification was in the child’s best interests.

B. Best Interests of the Child

The Third Department, citing its recent cases, reaffirmed the familiar, multi-factor best interests test:

“In making a best interests determination, Family Court must consider a variety of factors, including the quality of the parents' respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being” (Matter of Brooke PP. v Joshua QQ., 240 AD3d 1047, 1048–1049 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Kelly AA. v Christopher AA., 240 AD3d 1011, 1013 [3d Dept 2025]).

In other words, the court looks holistically at:

• Home stability and safety,
• Continuity in schooling and community,
• Each parent’s ability to meet the child’s physical, emotional, and developmental needs,
• Each parent’s historical caregiving performance, and
• Each parent’s willingness to foster a healthy relationship between the child and the other parent.

C. Domestic Violence in Custody Determinations

New York law (reflected in Domestic Relations Law § 240[1][a] and its case law) requires courts to consider the effect of domestic violence on the child’s best interests. The Third Department quoted its prior decision:

“[T]he court must consider the effect of domestic violence when the allegations of domestic violence are proven by a preponderance of the evidence” (Matter of Robert C. v Katlyn D., 230 AD3d 1392, 1394 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Frankie CC. v Rachel CC., 225 AD3d 1112, 1114 [3d Dept 2024]).

The key phrase is “proven by a preponderance of the evidence”—meaning it must be more likely than not that the abuse occurred. Mere allegations, especially if uncorroborated and not credited by the factfinder, do not compel the court to adjust the custody outcome.

D. Appellate Standard of Review

Appellate courts give substantial deference to Family Court’s factual findings and credibility determinations:

“Family Court's credibility determinations are entitled to deference by this Court and we will not disturb its best interests determination if supported by a sound and substantial basis in the record” (Matter of Christine EE. v David FF., 235 AD3d 1156, 1158 [3d Dept 2025] [citations omitted]; see Matter of Debra YY. v Michael XX., 234 AD3d 1021, 1023 [3d Dept 2025]).

Hence, unless the record clearly contradicts Family Court’s view, or the court misapplies the law, the Appellate Division will generally uphold the trial court’s assessment of what arrangement serves the child’s best interests.

E. Judicial Notice and Record Limitation on Appeal

The opinion addresses an increasingly common appellate issue: litigants attempting to bolster weak trial records by citing extra-record materials—websites, articles, studies—in their appellate briefs. The court reiterated that the Appellate Division is confined to the record on appeal.

While appellate courts have limited authority to take judicial notice of “new facts and allegations,” the Third Department emphasized, quoting Matter of Charity BB. v Jeremy CC., 241 AD3d 1045, 1047 (3d Dept 2025), that this is permissible only:

“to the extent [these facts] indicate that the record before [us] is no longer sufficient to determine the issue at hand” [internal quotation marks and citation omitted; emphasis added].

In other words:

• Newly arisen facts that show the existing record is outdated or incomplete may sometimes be noticed.
• Previously available evidence that a party simply chose not to submit at trial cannot be added later via the appellate brief.

F. Meaningful Representation (Ineffective Assistance) in Custody Cases

In custody and family law contexts, New York applies a “meaningful representation” standard, not the stricter criminal Strickland test. An attorney’s performance is deficient only if, considered as a whole, it deprived the party of a fair opportunity to be heard and likely affected the outcome.

The court relies on prior Third Department authority (e.g., Matter of Kyle I. v Kandice K., 232 AD3d 1074 [3d Dept 2024]; Matter of Audreanna VV. v Nancy WW., 158 AD3d 1007 [3d Dept 2018]) to hold that:

• Strategic or tactical decisions not to present certain evidence will rarely amount to ineffective assistance.
• A claim is inadequate if it is speculative—e.g., merely asserting that “better evidence might have changed the result,” without showing that counsel’s performance fell below professional norms.

V. Role of Precedents Cited

Although the opinion primarily applies well-established principles, it weaves in a series of recent Third Department decisions to underscore its reasoning. The major clusters of precedents serve distinct functions.

A. Best Interests Factors and Deference to Family Court

• Matter of Mark JJ. v Stephanie JJ., 240 AD3d 1025 (3d Dept 2025) and Matter of Janaye D. v Zachary C., 240 AD3d 961 (3d Dept 2025)
  These cases are cited to support the preliminary requirement of a change in circumstances before modifying an existing custody order, and the subsequent best-interests inquiry.
• Matter of Brooke PP. v Joshua QQ., 240 AD3d 1047 (3d Dept 2025) and Matter of Kelly AA. v Christopher AA., 240 AD3d 1011 (3d Dept 2025)
  These are used to restate the multi-factor best-interests test—home environment, stability, mutual support of parental relationships, and ability to meet the child’s developmental needs.
• Matter of Christine EE. v David FF., 235 AD3d 1156 (3d Dept 2025) and Matter of Debra YY. v Michael XX., 234 AD3d 1021 (3d Dept 2025)
  These authorities anchor the standard of appellate review, particularly the deference owed to Family Court’s credibility findings and best-interests determination when supported by a “sound and substantial basis” in the record.

Together, these decisions reinforce that the Third Department views its role as limited: it is not a second fact-finder but a reviewer for legal error and evidentiary sufficiency.

B. Stability and Educational Continuity

• Matter of Faith NN. v Dewey OO., 228 AD3d 1047 (3d Dept 2024) and Matter of Sabrina B. v Jeffrey B., 179 AD3d 1339 (3d Dept 2020)
  These cases are cited for the proposition that maintaining stability—including remaining in the same school district and community—can strongly favor leaving the child with the parent who provides that continuity, assuming both homes are otherwise adequate.

In Sherab X., the court relies on this line of precedent to justify keeping the child in the father’s district, especially given the child’s positive adjustment and friendships there, and the absence of objective evidence that the mother’s district was superior.

C. Domestic Violence and Proof Standards

• Matter of Robert C. v Katlyn D., 230 AD3d 1392 (3d Dept 2024) and Matter of Frankie CC. v Rachel CC., 225 AD3d 1112 (3d Dept 2024)
  These precedents articulate that the court must consider domestic violence only when allegations are proven by a preponderance of the evidence.
  Sherab X. applies this rule by concluding that the mother’s uncorroborated testimony did not meet that standard, so Family Court was not obligated to weigh her allegations against the father.

D. Appellate Record, Judicial Notice, and New Facts

• Matter of Virginia HH. v Elijah II., 211 AD3d 1201 (3d Dept 2022)
  Cited for the basic bar on expanding the appellate record. The Appellate Division may not consider materials that were not before Family Court.
• Matter of Charity BB. v Jeremy CC., 241 AD3d 1045 (3d Dept 2025)
  Clarifies the narrow scope of appellate judicial notice of “new facts and allegations”—only to the extent they show the existing record is no longer sufficient to resolve the issues. Sherab X. leans heavily on this to reject website-based materials as mere belated evidence, not “new facts.”

E. Meaningful Representation

• Matter of Kyle I. v Kandice K., 232 AD3d 1074 (3d Dept 2024) and Matter of Audreanna VV. v Nancy WW., 158 AD3d 1007 (3d Dept 2018)
  These decisions underscore that claims of ineffective assistance in family matters are speculative when a litigant merely posits that additional evidence might have changed the outcome and where foregone evidence could reflect a deliberate trial strategy.
• Matter of Michael YY. v Teresa ZZ., 242 AD3d 1343 (3d Dept 2025) and Matter of Amy K. v Jeffrey L., 241 AD3d 1632 (3d Dept 2025)
  These are cited more generally in support of affirming custody determinations where the record supports a sound and substantial basis.

F. Judicial Bias and Attorney for the Child

• Matter of Ahnna N. [Rosa N.], 240 AD3d 964 (3d Dept 2025); Matter of Jaylin'J E. [Charlotte D.], 240 AD3d 995 (3d Dept 2025), lv denied 44 NY3d 907 (2025); Matter of A. DD. v B. EE., 238 AD3d 1282 (3d Dept 2025); cf. Matter of Patrick UU. v Frances VV., 200 AD3d 1156 (3d Dept 2021)
  These cases collectively set a high bar for finding judicial bias: a showing of deep-seated favoritism or antagonism is required; mere adverse rulings are insufficient.
  Sherab X. treats the mother’s bias claims as unpreserved and meritless.
• Matter of Britney A. v Jonathan A., 238 AD3d 1447 (3d Dept 2025); Matter of Marcello OO. v Jayne PP., 202 AD3d 1407 (3d Dept 2022)
  These stand for the principle that claims of ineffective assistance by the attorney for the child are also strictly scrutinized, and casual or “passing” assertions will not suffice. Sherab X. characterizes the mother’s argument here as both unpreserved and without merit.

VI. The Court’s Legal Reasoning

A. Change in Circumstances

Because the mother did not contest the existence of a change in circumstances, the Appellate Division did not dwell on this prerequisite. The long-standing departure from the original alternating-week schedule to a de facto primary residence with the father plainly constituted such a change.

This tacit acknowledgement is important: it suggests that when an informal arrangement persists for an “extended period” and materially alters the balance of caregiving, the law will treat that as a sufficient predicate for revisiting custody.

B. Application of Best-Interests Factors

1. Home Environments and Stability

The father lived with the child and the paternal grandmother in a three-bedroom home where the child had his own bedroom. The evidence showed:

• The child had lived primarily with the father since December 2021.
• The child attended preschool a short walk from the father’s residence.
• The father had a nearby support system and the child had neighborhood friends.
• The father handled pediatric and dental appointments.

The mother, by contrast, lived in a rented apartment with a partner, where the child likewise had his own bedroom. The court accepted that her home was physically suitable. The decisive factor was not adequacy but stability and continuity: keeping the child in the same school district, with familiar routines, friends, and supports.

2. Health of the Mother

The mother testified that she had been diagnosed with systemic lupus in late 2020, which limited her ability to care for the child and had motivated the initial transfer of primary caregiving to the father. At the time of the hearing, she claimed her condition was “under control.”

The Appellate Division noted pointedly that:

• Her assertion of improved health lacked independent support—for example, no medical records or expert testimony were introduced.
• The record contained “no meaningful information” regarding her illness beyond her own characterization.

The court thus refused to elevate her claimed recovery to a decisive factor, underscoring that health-related arguments in custody disputes should be substantiated by objective evidence.

3. Educational Considerations and School Districts

The father had enrolled the child in a preschool near his residence, over which there was initial dispute. The mother ultimately agreed to this preschool, and the father testified that the child was “thriving” there.

For kindergarten, the mother favored her own district, acknowledging this would require a change in school district and many other changes in the child’s life. She claimed that her district offered a “very strong curriculum” and “diverse after-school activities,” but:

• She submitted no objective comparison of school quality—no state report cards, rankings, expert testimony, or documentation.
• Her claims were essentially unsupported assertions.

Thus, Family Court, and in turn the Appellate Division, emphasized the advantage of maintaining continuity in the child’s established school district absent reliable proof that moving would be substantially beneficial.

4. Willingness to Promote the Other Parent’s Relationship

The father testified that:

• The mother rarely requested additional time with the child.
• When he offered extra time, she often declined.

One Christmas Day incident in 2022 was particularly telling. The mother told the child he had “ruined Christmas” in a video call to the father. The child appeared to have been crying. When the father asked the child—on the video call—if he wanted to come back, the child said yes. While the mother later apologized, this was an example of:

• Poor judgment in addressing the child’s behavior, and
• Tension in the mother’s ability to support the child’s relationship with the father in a calm, age-appropriate manner.

The paternal grandmother testified she had taken over exchanges because the mother would yell at the father during transitions, which upset the child—a direct negative impact on co-parenting dynamics and the child’s emotional environment.

5. Past Performance, Relative Fitness, and Discipline

Family Court, credited by the Appellate Division, found that:

• The father maintained a stable, loving household.
• With help from the paternal grandmother, he consistently met the child’s needs in schooling, medical care, and activities.
• The father had a strong bond with the child and used appropriate discipline.

There was no finding that the mother was unfit. Rather, the court concluded that when both parents are generally fit, the decisive factors can be continuity and the demonstrable quality and stability of the arrangement under which the child is currently thriving.

C. Domestic Violence Allegations

The mother testified that the father:

• Yelled in her and the child’s faces.
• Grabbed her wrists forcefully.
• Once grabbed the child off a changing table by the leg and dropped him into bed.
• Squeezed her neck during a “playful fighting” incident.
• Had threatened to kill her in her sleep, which made his presence at a Boy Scout overnight event distressing to her.

The father admitted to one mutual-choking incident during a past argument, stating he grabbed her neck in response to her doing so. He also acknowledged the police had removed him from their home in 2020 after a conflict. He denied a pattern of grabbing or violent conduct, and family members described him as patient with the child.

The Appellate Division responded by:

• Reiterating that domestic violence must be proven by a preponderance of the evidence (Robert C. v Katlyn D.; Frankie CC. v Rachel CC.).
• Characterizing the mother’s testimony as “self-serving” and concluding it did not satisfy that standard.
• Holding, consequently, that Family Court was not required to give weight to those allegations.

That formulation is significant. The court did not say it was forbidden to consider uncorroborated allegations if found credible; rather, it found that here, the factfinder did not credit the allegations to the necessary degree, and that determination was entitled to deference.

The practical message is that, in custody litigation:

• Domestic violence allegations must be corroborated where feasible (e.g., photographs, medical records, police reports, orders of protection, third-party witnesses), and
• Absent such proof, or absent a clear credibility finding in favor of the alleging parent, the Appellate Division will not disturb a custody award based solely on one party’s testimony.

D. Attempted Expansion of the Record on Appeal

The mother’s appellate brief attempted to remedy evidentiary gaps by citing a “litany” of websites purporting to show:

• Comparative data about the school districts, and
• Information about her illness.

The Third Department described this as an “improper attempt to expand the record” and refused to consider it.

It emphasized:

• The Appellate Division is limited to the record on appeal (citing Virginia HH. v Elijah II.).
• While the court may “take notice of … new facts and allegations,” such notice is limited to circumstances where these facts show the original record is “no longer sufficient” to decide the case (Charity BB. v Jeremy CC.).
• The information in the mother’s brief was not new; it was material “she could have provided in the first instance” at the hearing.

This is a critical procedural holding: litigants cannot treat the appellate process as an opportunity to plug evidentiary holes created by strategic or negligent omissions at trial, especially by simple reference to online material. Counsel must build the necessary record in Family Court.

E. Ineffective Assistance of Counsel

The mother argued that her counsel’s failure to introduce objective evidence concerning school quality and her illness deprived her of effective representation.

The Appellate Division rejected this as:

• Speculative: there was no clear indication that the omitted evidence would have altered the outcome (Kyle I. v Kandice K.), and
• Potentially strategic: the decision not to inundate the record with certain materials could be a deliberate tactical choice (Audreanna VV. v Nancy WW.).

The court concluded that the mother was not deprived of meaningful representation. Taken as a whole, counsel’s performance allowed her to present her case; any perceived shortcomings did not render the proceeding fundamentally unfair.

F. Judicial Bias and Attorney for the Child

The mother’s claims that the Family Court judge was biased, and that the attorney for the child was ineffective, were:

• Unpreserved—not properly raised in Family Court, and therefore generally barred on appeal, and
• In any event, without merit.

Relying on the line of cases including Ahnna N., Jaylin'J E., A. DD. v B. EE., Patrick UU., Britney A. v Jonathan A., and Marcello OO. v Jayne PP., the court reaffirmed that:

• Adverse rulings do not establish bias.
• Claims against the attorney for the child must show that the AFC failed to advocate the child’s expressed wishes (unless contrary to the child’s best interests) or otherwise failed in their core representational role. The mother’s “passing assertions” did not suffice.

VII. Impact and Future Implications

A. Custody Modifications and De Facto Arrangements

Sherab X. reinforces that where:

• A prior judgment provides for joint physical custody, but
• The parties have operated for a substantial period under a different, stable, de facto arrangement, and
• The child is clearly doing well under that arrangement,

Family Court and the Appellate Division are likely to formalize the status quo absent strong reasons to disrupt it. This underscores the risk of informally altering custody or access arrangements without a clear paper trail or court oversight: over time, the informal arrangement itself becomes compelling evidence of the child’s best interests.

B. Emphasis on Stability and School Continuity

By relying on Faith NN. and Sabrina B., the court amplifies a recurring theme in modern New York custody law: keeping a child in a familiar school and community is often determinative when both parents offer adequate homes.

Future litigants should anticipate that:

• Proposals that would require a school change will face heightened scrutiny, especially if the child is thriving where they are.
• Assertions that another district is “better” must be supported by objective comparative evidence (e.g., state performance data, specialized programs, expert testimony), not mere anecdotal preferences.

C. Domestic Violence Allegations: Need for Proof

This decision will likely be cited for its succinct articulation that self-serving, uncorroborated allegations may not suffice to compel a different custody outcome—even when they involve serious misconduct—unless the factfinder credits them by a preponderance of the evidence.

For survivors of domestic violence, the case illustrates:

• The critical importance of documenting incidents (police reports, medical records, photographs).
• The value of securing orders of protection and third-party testimony where available.
• The need to present these materials at the hearing, not merely describe them on appeal.

At the same time, the opinion does not diminish the statutory mandate to consider domestic violence; it simply insists that this consideration be anchored in proven facts.

D. Appellate Practice: Record and Judicial Notice

From an appellate-practice standpoint, Sherab X. adds clarity on:

• The impermissibility of using appellate briefs to add web-based or other materials that were not introduced below.
• The narrowness of the “new facts and allegations” doctrine: it is not a backdoor for late evidence, but a tool for dealing with events that arise after the trial and call into question the sufficiency of the existing record (e.g., a post-judgment relocation, new medical diagnosis, or significant change in child’s living situation).

Counsel must therefore treat the Family Court hearing as the primary and critical opportunity to create a comprehensive evidentiary record. Failure to introduce key documentation will rarely be cured on appeal.

E. High Bar for Ineffective Assistance and Bias Claims

The decision continues the Third Department’s pattern of:

• Requiring concrete, non-speculative showings that counsel’s performance fell below professional standards and likely affected the outcome before disturbing custody orders.
• Rejecting bare or conclusory claims of judicial bias and attorney-for-the-child ineffectiveness, especially where not preserved below.

This tends to promote finality in custody litigation and discourages reflexive post hoc attacks on adverse custody rulings that are really disagreements with the outcome rather than genuine concerns about process.

VIII. Simplifying Key Legal Concepts

A. “Best Interests of the Child”

This is the core standard in New York custody law. In practice, it means the court asks: What arrangement is most likely to promote this specific child’s safety, stability, and healthy development? Factors include:

• Safety and absence of abuse.
• Stability of home and school.
• Quality of each parent’s parenting and past involvement.
• Emotional bonds with each parent.
• Each parent’s willingness to support the child’s relationship with the other parent.

B. “Preponderance of the Evidence”

This is the civil burden of proof. It means the court must be convinced that something is more likely than not (even just 51% likely) to be true. For domestic violence allegations to affect custody, the evidence must tip the scale that far.

C. “Sound and Substantial Basis in the Record”

This is the appellate standard. The Appellate Division does not ask whether it would have made the same decision itself. Instead, it asks: Was there enough evidence that a reasonable judge could reach this conclusion? If yes, it will affirm.

D. “Meaningful Representation”

In family court, a parent is entitled to a lawyer whose performance is adequate overall, even if not perfect. To prove ineffective assistance, it is not enough to say “my lawyer could have done more.” One must show:

• Counsel’s services fell below a reasonable professional standard, and
• These failures likely changed the result.

E. “Lincoln Hearing”

A Lincoln hearing is an in-camera interview of the child by the judge, outside the presence of parents. Its purposes are:

• To hear the child’s wishes and concerns in a less intimidating setting.
• To protect the child from direct exposure to parental conflict.
• To allow the judge to gauge the child’s perspective while maintaining confidentiality.

The content of Lincoln hearings is usually not disclosed in detail in published opinions, to safeguard the child’s privacy.

F. Judicial Notice and Record on Appeal

“Judicial notice” allows a court to recognize certain facts without formal proof—for example, that a particular date fell on a Tuesday or that a statute says what it says. In custody appeals, the Third Department has limited this power:

• The court can sometimes notice new developments arising after the hearing that show the existing record is insufficient.
• It cannot be used to retroactively introduce evidence that was always available but simply not offered below (e.g., websites comparing school districts).

IX. Conclusion

Matter of Sherab X. v. Michelle Y. is a relatively fact-specific custody-modification decision, but it yields several broader lessons:

• Stability and continuity—particularly in schooling and residence—carry heavy weight when both parents are generally fit.
• Domestic violence allegations will influence custody outcomes only when proven by a preponderance of the evidence; uncorroborated, self-serving testimony may be discounted by Family Court, and that credibility call is usually insulated on appeal.
• Parties must put all critical objective evidence (e.g., health records, school-district comparisons) in front of Family Court; they cannot repair a thin record by citing websites and documents in an appellate brief.
• Claims of ineffective assistance, judicial bias, or attorney-for-the-child failure face a high bar and require more than speculative or “passing” assertions.

In sum, the decision reflects and refines existing New York law rather than dramatically changing it. Its most notable doctrinal contribution is its clear articulation of the limits on expanding the record and invoking judicial notice on appeal in the custody context, alongside its insistence that allegations of domestic violence must be proven—not merely alleged—before they reshape the best-interests analysis. For practitioners, it is a reminder that the trial record is everything, and that stability, carefully documented, often carries the day.