Opinion
7211
10-02-2018
In re GEORGE A., Petitioner–Respondent, v. JOSEPHINE D., Respondent–Appellant.
Bruce A. Young, New York, for appellant. Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent. Karen P. Simmons, The Children's Law Center, Brooklyn (Laura Solecki of counsel), attorney for the children.
Bruce A. Young, New York, for appellant.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Karen P. Simmons, The Children's Law Center, Brooklyn (Laura Solecki of counsel), attorney for the children.
Renwick, J.P., Gische, Kahn, Kern, Moulton, JJ.
Order, Family Court, Bronx County (Jennifer Burtt, Referee), entered on or about June 9, 2017, which awarded petitioner father sole physical and legal custody of the subject children, and modified a prior visitation order by limiting respondent mother's access to monthly supervised visitation and monthly telephone calls, unanimously affirmed, without costs.
Family Court Act § 1046(a)(iv) permits a child's out-of-court statements regarding abuse or neglect to be admissible as evidence in a custody and visitation proceeding if properly corroborated (see Matter of Mildred S.G v. Mark G., 62 A.D.3d 460, 462, 879 N.Y.S.2d 402 [1st Dept. 2009] ). Family Court has "considerable discretion" to determine whether a child's out-of-court statements describing neglect have been corroborated ( Matter of Christina F., 74 N.Y.2d 532, 536, 549 N.Y.S.2d 643, 548 N.E.2d 1294 [1989] ). Here, the children's in camera interviews corroborated the father's testimony, cross-corroborated each other's statements regarding the mother's emotional and physical mistreatment, and revealed the children's preferences for custody and visitation. Contrary to the mother's contentions, the children's in camera statements were properly obtained in a confidential setting, at which only their attorney was present, without implicating the mother's due process rights (see Matter of Heasley v. Morse, 144 A.D.3d 1405, 1407–1408, 42 N.Y.S.3d 377 [3d Dept. 2016] ; see generally Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271–272, 299 N.Y.S.2d 842, 247 N.E.2d 659 [1969] ).
The Family Court's determination to limit the mother's access to supervised visitation has a sound basis in the record, and we accord great deference to the referee's finding that the mother was not credible (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). In addition to evidence that the mother blatantly violated the prior order of visitation and subjected the children to badgering, threats, and other emotional and physical maltreatment during unsupervised visitation, the Family Court properly gave weight to the desire of the children—at the time 11 and 15 years old—to reside with the father, and only have minimal supervised visits and telephone contact with the mother (see Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408, 985 N.Y.S.2d 28 [1st Dept. 2014] ).
We have considered the remaining arguments, including the mother's claim that she had ineffective assistance of counsel, and find them unavailing.