Opinion
2014-09-25
In re ALFREDO J.T., Petitioner–Respondent, v. JODI D., Respondent–Appellant.
Law Offices Of Lisa Beth Older, New York (Lisa Beth Older of counsel), for appellant. Brian D. Perskin & Associates, P.C., Brooklyn, (Brian D. Perskin of counsel), for respondent.
Law Offices Of Lisa Beth Older, New York (Lisa Beth Older of counsel), for appellant. Brian D. Perskin & Associates, P.C., Brooklyn, (Brian D. Perskin of counsel), for respondent.
Karen P. Simmons, The Children's Law Center, Brooklyn (Barbara H. Dildine of counsel), attorney for the child.
Order, Family Court, Bronx County (David B. Cohen, J.), entered on or about August 30, 2013, which, inter alia, awarded petitioner father Alfredo J.T. sole legal and physical custody of the subject child, with visitation to respondent mother, unanimously affirmed, without costs.
The court's determination was based upon a thoughtful assessment of the parties' testimony and credibility, and has a sound and substantial basis in the record ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]; Bubbins v. Bubbins, 136 A.D.2d 672, 524 N.Y.S.2d 50 [2d Dept.1988] ). The court properly considered the appropriate factors in making its determination, and gave appropriate weight to the testimony and recommendations of the court-appointed forensic expert, which is but one factor to consider and is not a substitute for the court's own review of the relevant record evidence ( see State of New York ex rel. H.K. v. M.S., 187 A.D.2d 50, 53, 592 N.Y.S.2d 708 [1st Dept.1993], appeal dismissed81 N.Y.2d 1006, 599 N.Y.S.2d 804, 616 N.E.2d 159 [1993] ).
The court properly considered the evidence that, among other things, the mother deliberately and continuously disparaged the father in the child's presence, which caused the child to develop anxiety which was further fostered by the mother's conduct ( see Dodson v. Dodson, 77 A.D.3d 564, 909 N.Y.S.2d 68 [1st Dept.2010] ), and impeded the father's visitation with the child, conduct clearly inconsistent with the child's best interests ( see Matter of Xiomara M. v. Robert M., 102 A.D.3d 581, 582, 958 N.Y.S.2d 391 [1st Dept.2013]; Matter of Howell v. Lovell, 103 A.D.3d 1229, 1232, 960 N.Y.S.2d 278 [4th Dept.2013]; Matter of James Joseph M. v. Rosana R., 32 A.D.3d 725, 726, 821 N.Y.S.2d 168 [1st Dept.2006], lv. denied7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ).
In addition, the father was shown to be more stable and better suited to meet the child's medical and educational needs ( see Matter of Worowski v. Worowski, 95 A.D.2d 687, 463 N.Y.S.2d 798 [1st Dept.1983]; Matter of Sellen v. Wright, 229 A.D.2d 680, 681, 645 N.Y.S.2d 346 [3d Dept.1996] ). In the mother's care, the child developed advanced bottle rot requiring extensive dental treatment, and was still wearing diapers at the age of five. The mother changed the child's pre-school repeatedly, sometimes without consulting the father, and moved to several different residences. The court properly considered the evidence supporting the mother's allegations of domestic violence, and concluded that the allegations were not credible.
The child, who now resides in the father's home with her father, stepmother, stepsister and an infant half-brother, would benefit from continued stability in the father's home, and will still be able to maintain contact with her older half-sister through visitation and modern communicationtechnology ( see Matter of Brown v. Marr, 23 A.D.3d 1029, 1030, 804 N.Y.S.2d 181 [4th Dept.2005] ).
The attorney for the child acted properly in apprising the court of the then 5–year–old child's expressed preference to reside with the mother, but in advocating otherwise based upon her determination that the child lacked “capacity for knowing, voluntary and considered judgment” (22 NYCRR 7.2[d] [3]; see Matter of Rosso v. Gerouw–Rosso, 79 A.D.3d 1726, 1728, 914 N.Y.S.2d 829 [4th Dept.2010] ).
We have considered appellant's remaining arguments, and find them unavailing. SWEENY, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, CLARK, JJ., concur.