Mildred S. G. v. Mark
G.
Matter of Mildred S.G. v Mark G.
2009
NY Slip Op 03670
Decided
on May 7, 2009
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on May 7, 2009
Mazzarelli, J.P., Sweeny, Nardelli,
Freedman, Richter, JJ.
506
507
[*1]In
re Mildred S.G., Petitioner-Respondent,
v
Mark G., Respondent-Appellant.
In
re Mark G., Petitioner-Appellant,
v
Mildred S.G., Respondent-Respondent.
George E. Reed, Jr.,
Safe
Horizon Domestic Violence Law Project,
Agarwala
of counsel), for respondent.
Karen
P. Simmons, The Children's
(Barbara H. Dildine of counsel),
Law Guardian.
Order,
Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about
August 31, 2007, which vacated an earlier order awarding joint custody of the
child to the parents and instead granted sole legal and physical custody to the
mother with supervised visitation to the father, unanimously affirmed, without
costs. Order, same court and Judge, entered on or about June 12, 2008, which
dismissed with prejudice the father's proceeding for modification of the
custody order, unanimously modified, on the law, the provision that dismissal
is with prejudice deleted, and otherwise affirmed, without costs.
Although
this Court's authority in custody matters is as broad as that of the trial
court, the latter's findings and determination are accorded great deference on
appeal (Victor L. v Darlene L., 251 AD2d 178 [1998], lv
denied 92 NY2d 816 [1998]), since that court had the opportunity to assess the
witnesses' demeanor and credibility (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]). Here, there was a sound
basis for the court's determination that the circumstances had changed
sufficiently to modify the original joint custody order. It was clear from the
record that the parties' relationship had deteriorated to such an extent that
they were no longer able to co-parent their minor child. The father continually
filed frivolous petitions against the mother and reported her to ACS — with
none of the reports resulting in any findings of wrongdoing — [*2]and once had
her arrested while the child was in her care. Those actions by the father
justified the court's modification of the joint custody award (see David K. v
Iris K., 276 AD2d 421, 422 [2000]; Gaudette v Gaudette, 262 AD2d 804, 805 [1999]). Moreover, the father
appeared to misunderstand completely the concept of "joint custody"
and made unilateral decisions without consulting the mother. His actions in
this regard called into question whether he would support and encourage an
appropriate relationship between mother and child (see Bliss v Ach, 56 NY2d
995, 998 [1982]; see also
The
father's argument that the court improperly relied upon the forensic report
lacks merit. Even without the forensic report, the court would have had ample
basis to award the mother full custody (see Matter of D'Esposito
v Kepler, 14 AD3d 509 [2005]).
Family
Court Act § 1046 provides an exception to the rule against hearsay testimony
for prior statements made by children relating to allegations of abuse and
neglect, which is applicable here (see Matter of Albert G. v Denise B., 181
AD2d 732 [1992]). Furthermore, those statements were properly corroborated with
photographs (see § 1046[a][vi]; Matter of Pratt v
Wood, 210 AD2d 741, 742 [1994]).
With
respect to the appeal from the later order, dismissal with prejudice was
improper because the court never reached the merits of that petition. That
provision should be deleted from the order (see Tico,
Inc. v Borrok, 57 AD3d 302 [2008]).
We
have considered the father's remaining contentions and find them without merit.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
MAY 7, 2009
CLERK