| Matter of Treider v Lamora |
| 2007 NY Slip Op 07981 [44 AD3d 1241] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of Mitchell Treider, Respondent, v Tammy Lamora,Appellant. (And Another Related Proceeding.) |
—[*1] David E. LaPlant, Malone, for respondent. Judith A. Pareira, Law Guardian, Saranac Lake.
Rose, J. Appeal from an order of the Family Court of Franklin County (Main, Jr., J.), enteredFebruary 3, 2005, which granted petitioner's application, in two proceedings pursuant to FamilyCt Act article 6, for custody of the parties' child.
The parties are the father and mother of a daughter born in 1995 while they were residing inFlorida. In 1999, the mother moved with the child to New York. When the father filed a petitionhere seeking custody in April 2003, Family Court granted him temporary custody and, since thefall of 2003, the child has resided with him in Florida. The mother then cross-petitioned forcustody, a hearing was held and the referee filed a lengthy report recommending that custody beawarded to the father. Family Court then issued an order confirming the referee's report, grantingthe father sole legal and physical custody in Florida, and awarding extensive visitation to themother. She now appeals and we affirm.[FN*][*2]
The overriding concern in a custody determination is thebest interests of the child under all the circumstances (see Matter of Hildenbrand v Hildenbrand, 37 AD3d 981, 981[2007]; Matter of Hostetler vMontanye, 30 AD3d 720, 721 [2006], lv denied 7 NY3d 710 [2006]). BecauseFamily Court is in the best position to evaluate the credibility of the witnesses, its factualfindings will be accorded great deference (see Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]).Further, its determinations will not be disturbed if they have a sound and substantial basis in therecord (see Matter of Moore vBarrett, 13 AD3d 926, 928 [2004]). Here, the testimony established that the mother hadrelinquished care and custody of the child to her sister for long periods of time, and that this wasdone to relieve the mother of her care and to punish the child for misbehavior. The mother alsopunished the child by withholding food, disciplined her by threatening to send her to foster careor back to Florida, threatened her with extreme physical harm, verbally abused her and smokedheavily in her presence. The mother even blamed the child for her own admittedly inappropriateresponses to the child's behavior. Thus, Family Court reasonably concluded that the motherlacked an understanding of basic parenting despite having been the primary caregiver, and thefather would provide better care for the child (see Matter of Storch v Storch, 282 AD2d845, 846-847 [2001], lv denied 96 NY2d 718 [2001]).
Next, while we agree with the mother's contention that Family Court clearly erred inappointing its law clerk as referee to hear this custody dispute (see Carpenter v Carpenter,278 AD2d 695, 696 [2000]), the parties concede that they were aware of this impropriety and didnot object to the law clerk serving as referee. Since the error is not a jurisdictional defect and "aparty may not challenge the qualifications of a [r]eferee for the first time on appeal" (Matterof Scinta v Scinta, 129 AD2d 262, 265 [1987]; see Matter of Barone v Milks, 289AD2d 931, 932 [2001]), the mother waived this objection.
The mother also argues that denial of her motion made on the eve of trial to disqualify thefather's counsel, David LaPlant, was an abuse of discretion. However, given the lack of proof of aprior attorney-client relationship or that any relevant confidential information was conveyed toLaPlant, the referee did not err in denying the mother's motion (see Murphy v Colbert,203 AD2d 619, 620 [1994]; Sucese v Kirsch, 199 AD2d 718, 719 [1993]).
The mother next contends that by twice prohibiting her from consulting with counsel duringovernight recesses that interrupted her testimony, the referee denied her the right to counsel. Thisissue, however, is not before us as there was no objection made to the referee's rulings and it israised for the first time in the mother's new appellate brief (see Matter of Kubista v Kubista, 11 AD3d 743, 745 [2004];Matter of Gordon L. v Michelle M., 296 AD2d 628, 630 [2002]). Given the four yearsthat have elapsed since physical custody of the parties' child was granted to the father and themother's failure to demonstrate any significant prejudice, we decline to review the issue.
Also unpreserved is the mother's challenge to Family Court's receipt of a Law [*3]Guardian's "report" containing facts outside the record (see Matter of Amy L.W. v BrendanK.H., 37 AD3d 1060, 1061 [2007]). In any event, while such a submission is surelyinappropriate (see Weiglhofer vWeiglhofer, 1 AD3d 786, 788 n [2003]), the error was harmless here because FamilyCourt's decision is fully supported by facts within the record (see Matter of Graham v Graham, 24 AD3d 1051, 1054 [2005],lv denied 6 NY3d 711 [2006]; Matter of Jelenic v Jelenic, 262 AD2d 676, 678[1999]; Matter of Rush v Rush, 201 AD2d 836, 838 [1994]).
Finally, the mother argues that she was denied the effective assistance of counsel. Wedisagree. Given the apparent lack of precedent holding that preclusion of overnight consultationwith counsel in a noncriminal proceeding is improper, we will not consider counsel'srepresentation to be ineffective for failure to object to the referee's ruling. Also, as to the failureto submit findings of fact, the record contains ample support for the findings actually made byFamily Court. Significantly, the mother's counsel was successful in procuring an adjournmentafter being retained shortly before the scheduled trial date, elicited testimony which was highlydetrimental to the father, made appropriate objections and vigorously cross-examined the father'switnesses. For these reasons and since Family Court largely rejected the mother's contentions dueto her own lack of credibility, we find no merit in her ineffective representation claim (see Matter of Whitley v Leonard, 5AD3d 825, 827 [2004]; Matter of Grenier v Allen, 296 AD2d 619, 620 [2002], lvdenied 98 NY2d 615 [2002]).
Cardona, P.J., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Although this appeal wasoriginally scheduled to be heard in September 2006, it was adjourned due to the retirement of themother's counsel, the assignment of new counsel, and the filing of a new brief and record onappeal.