Summary
In Muller, the Appellate Court searched the record and found that aggravating circumstances did exist, even though the Court's order did not set forth specific aggravating circumstances.
Summary of this case from In Matter of J.R.W.Opinion
November 27, 1995
Appeal from the Family Court, Kings County (Segal, J.).
Ordered that the order dated July 5, 1995, is modified by deleting the provision thereof which conditioned the father's future unsupervised visitation with the two infant children on his participation in weekly psychotherapy; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order of protection is modified, on the law and the facts, by deleting the provision thereof providing that the order will expire on April 5, 2004, and substituting therefor a provision providing for the order to expire on July 5, 1998, based upon a finding of aggravating circumstances as set forth herein; as so modified, the order of protection is affirmed insofar as appealed from, without costs or disbursements.
In view of the evidence that the father "psychologically poisoned" the minds of the two teenage children while they were in his temporary custody (compare, Young v Young, 212 A.D.2d 114), the Family Court properly determined that, in light of the totality of the circumstances, the best interests of the parties' children were served by awarding custody of all four children to the mother (see, Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Scalia v Scalia, 217 A.D.2d 780; Young v Young, supra; Fanelli v Fanelli, 215 A.D.2d 718).
The testimony and recommendations of the mother's psychological expert were properly credited as they were uncontradicted by the record (see, Young v Young, supra; Rentschler v Rentschler, 204 A.D.2d 60, lv dismissed 84 N.Y.2d 1027; Matter of Prete v Prete, 193 A.D.2d 804; Bluemke v Bluemke, 155 A.D.2d 574, 575; Asher v Asher, 79 A.D.2d 904, 905; Guzzo v Guzzo, 66 A.D.2d 833).
While the two teenage children expressed a preference to live with their father, a child's preference for a particular parent, while a factor to be considered, cannot be determinative (see, Young v Young, supra, at 123; Darema-Rogers v Rogers, 199 A.D.2d 456; Zucker v Zucker, 187 A.D.2d 507). In weighing the child's expressed preference, "the court must consider the age and maturity of the child and the potential for influence having been exerted on the child" (Eschbach v Eschbach, supra, at 173; see also, Young v Young, supra, at 123). The wishes of the two teenage children were properly considered in light of the overwhelming evidence that their feelings about their mother were influenced and fostered by the father's hostility toward the mother (see, Young v Young, supra, at 114; Bubbins v Bubbins, 136 A.D.2d 672; Zelnik v Zelnik, 196 A.D.2d 700; O'Connor v O'Connor, 146 A.D.2d 909).
Since there is no evidence of bias or prejudice on the part of the Family Court Judge, it was not an improvident exercise of discretion to deny the father's motion for a mistrial seeking to recuse the Judge (see, Matter of Zirkind v Zirkind, 218 A.D.2d 745; Matter of Emory CC., 199 A.D.2d 932, lv dismissed 83 N.Y.2d 837; Greenman v Greenman, 175 A.D.2d 360).
Though the record fully supports the finding that the best interests of the two infant children are served by supervised visitation with their father (see, Matter of Hill v Rogers, 213 A.D.2d 1079; Matter of Acker v Acker, 212 A.D.2d 1014; Matter of Samuel L.J. v Sherry H., 206 A.D.2d 886; Matter of Tito G. v Thelma G., 187 A.D.2d 651), it was error to condition possible future unsupervised visitation with the two infant children on the father's participation in weekly psychotherapy (see, Matter of Tito G. v Thelma G., supra; Nacson v Nacson, 166 A.D.2d 510; Matter of Paris v Paris, 95 A.D.2d 857, 858; Matter of Grado v Grado, 44 A.D.2d 854). Accordingly, the provision relating to possible future unsupervised visitation is deleted from the judgment.
The order of protection dated July 5, 1995, provided that it did not expire until April 5, 2004, without setting forth any aggravating circumstances. Nonetheless, the record reveals that aggravating circumstances exist as the father violated prior temporary orders of protection and caused physical injury to the mother (see, Family Ct Act § 827 [a] [vii]). Accordingly, the order of protection is modified to include such findings and to provide for its expiration in three years, on July 5, 1998 (see, Family Ct Act § 842, 827 [a] [vii]; Matter of Zirkind v Zirkind, supra). Balletta, J.P., Ritter, Copertino and Pizzuto, JJ., concur.