Opinion
2012-11-16
In the Matter Of Stefan R. McDONALD, Petitioner–Appellant, v. Monique S. TERRY, Respondent–Respondent. In the Matter of Monique S. Terry, Petitioner–Respondent, v. Stefan R. McDonald, Respondent–Appellant.
Allen & O'Brien, Rochester (Stuart L. Levison of Counsel), for Petitioner–Appellant and Respondent–Appellant. Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Respondent–Respondent and Petitioner–Respondent.
Allen & O'Brien, Rochester (Stuart L. Levison of Counsel), for Petitioner–Appellant and Respondent–Appellant. Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Respondent–Respondent and Petitioner–Respondent.
Tanya J. Conley, Attorney for the Children, Rochester, for Jalen M. and Xavier M.
PRESENT: SMITH, J.P., FAHEY, SCONIERS, AND WHALEN, JJ.
MEMORANDUM:
On appeal from an order that, inter alia, granted respondent-petitioner mother sole custody and primary physical residence of the parties' children with access to petitioner-respondent father, the father contends that Family Court's decision is replete with evidence of bias towards him, and that such bias unjustly affected the court's determination to award custody to the mother. We reject that contention. “It is well settled that ‘[t]he alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his [or her] participation in the case’ ” ( Board of Educ. of City School Dist. of City of Buffalo v. Pisa, 55 A.D.2d 128, 136, 389 N.Y.S.2d 938, quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 16 L.Ed.2d 778). In this case, the father does not contend that the court's alleged bias stemmed from “ ‘an extrajudicial source’ ” or “ ‘some basis other than what the judge learned from [her] participation in the case’ ” ( id.), nor in any event would the record support such a contention ( see Matter of Amy L.W. v. Brendan K.H., 37 A.D.3d 1060, 1061, 830 N.Y.S.2d 408;Matter of Angie M.P., 291 A.D.2d 932, 933, 737 N.Y.S.2d 490,lv. denied98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835). We reject the father's further contention that the court erred in awarding sole custody of the parties' children to the mother. A court's “determinationfollowing a hearing that the best interests of [the] children would be served by an award of sole custody to [one of the parents] is entitled to great deference” ( Matter of Goossen v. Goossen, 72 A.D.3d 1591, 1591, 898 N.Y.S.2d 921;see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260), “particularly in view of the hearing court's superior ability to evaluate the character and credibility of the witnesses” ( Matter of Thillman v. Mayer, 85 A.D.3d 1624, 1625, 926 N.Y.S.2d 779). Nevertheless, as a matter of discretion in the interest of justice, we modify the order by vacating the fourth ordering paragraph and reinstating the parties' prior weekly access schedule as set forth in the order entered January 25, 2010.
It is hereby ORDERED that the order so appealed from is unanimously modified as a matter of discretion in the interest of justice by vacating the fourth ordering paragraph in the order and reinstating the weekly access schedule set forth in the order entered January 25, 2010, and as modified the order is affirmed without costs.