| Matter of Bartlett v Jackson |
| 2008 NY Slip Op 00306 [47 AD3d 1076] |
| January 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Rick L. Bartlett, Respondent-Appellant, v NicoleA. Jackson, Appellant-Respondent. (And Another RelatedProceeding.) |
—[*1] Cappello, Linden & Ladouceur, Potsdam (Michelle H. Ladouceur of counsel), forrespondent-appellant. Jehed Diamond, Law Guardian, Delhi.
Lahtinen, J. Cross appeals from an order of the Family Court of St. Lawrence County (Potter,J.), entered February 28, 2006, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the unmarried parents of a son (born in 1997). In 1999, pursuant to astipulation of the parties, Family Court (Mycek, J.H.O.) ordered that respondent (hereinafter themother) have sole legal and physical custody, with petitioner (hereinafter the father) receivingvisitation. In 2005, the father petitioned to modify the 1999 order and grant him sole legal andphysical custody based upon various allegations, including that the mother and her currentboyfriend purportedly inflicted severe physical punishment upon the child. Following anextensive fact-finding hearing and a Lincoln hearing, Family Court (Potter, J.) rendered alengthy [*2]written decision granting the father sole legal andphysical custody and liberal parenting time to the mother. The mother appeals contending thatFamily Court erred in modifying custody and the father cross-appeals asserting, among otherthings, that the mother should have received less parenting time than provided by the court.
The mother initially argues that Family Court incorrectly admitted hearsay evidence and thenrelied upon such evidence in its decision. In custody proceedings involving allegations of abuseor neglect, hearsay statements of the child pertinent to those allegations may be admitted andconsidered so long as they are corroborated by other evidence (see Matter of Bernthon v Mattioli, 34AD3d 1165, 1165-1166 [2006]; Matter of Rosario WW. v Ellen WW., 309 AD2d984, 987 [2003]; Matter of Baxter v Perico, 288 AD2d 717, 717 [2001]). Family Court isaccorded considerable discretion in determining whether there is sufficient corroboration (seeMatter of Bernthon v Mattioli, 34 AD3d at 1165-1166; Matter of Heater v Heater, 15 AD3d 804, 805 [2005]).
Here, one of the primary grounds asserted as a significant change in circumstances meritingthe modification of custody was the alleged pattern of severe corporal punishment that resulted inthe child having considerable bruises on his legs and arms as well as an occasional bloody nose.Witnesses at the hearing testified about the child's statements to them regarding such actions bythe mother and her boyfriend. While this testimony was hearsay, it involved alleged abuse andwas corroborated. Corroboration came from various evidence, including photographs of thechild's many bruises. As for the assertion that the mother caused a bloody nose on severaloccasions by striking the child, corroboration included the eyewitness account of her formerboyfriend. While the former boyfriend's credibility was clearly in question, his testimony was notso devoid of merit as to require the total rejection thereof. Moreover, the fact that an alternativeexplanation was offered for the child's bruises did not mandate that Family Court accept thatexplanation. In short, the hearsay evidence as to unduly severe punishment was sufficientlycorroborated and, as for the other hearsay evidence, the error in admitting such proof washarmless in light of the extensive admissible evidence at the hearing which supports FamilyCourt's decision (see Posporelis vPosporelis, 41 AD3d 986, 990 [2007]; Matter of Jelenic v Jelenic, 262 AD2d676, 678 [1999]).
We next consider the mother's argument that Family Court abused its discretion in awardingcustody to the father. "An existing custody arrangement may be modified upon a showing thatthere has been a subsequent change of circumstances and modification is required to ensure thebest interests of the child[ ]" (Matter ofLaware v Baldwin, 42 AD3d 696, 696 [2007] [internal quotation marks and citationomitted]; see Matter of Colwell vParks, 44 AD3d 1134, 1135 [2007]). Although much conflicting evidence was presentedby the parties on virtually every issue, there is a sound and substantial basis in the record tosupport the finding of unduly severe punishment occurring on several occasions, as well as otherfindings, including that the mother repeatedly attempted to undermine the child's relationshipwith his father and engaged in conduct detrimental to the child's mental health. These findingsprovide an ample basis for Family Court's conclusion that a change in custody was appropriate(see Matter of Krywanczyk v Krywanczyk, 236 AD2d 746, 747 [1997]). Further, FamilyCourt discussed in detail many of the various factors relevant in ascertaining what custodyarrangement serves the best interests of the child, and we discern no reason in this record todisturb its holding that such interests are best served by the father having custody (see Matter of Decker v Lackos, 41AD3d 916, 918 [2007]).[*3]
The mother's remaining contentions, including that shedid not receive the effective assistance of counsel, have been considered and found unavailing.We have also considered and find no merit in the father's arguments in his cross appeal thatFamily Court should have mandated mental health counseling for the mother and afforded herless parenting time.
Mercure, J.P., Peters, Rose and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.