| Matter of Penny B. v Gary S. |
| 2009 NY Slip Op 03392 [61 AD3d 589] |
| April 28, 2009 |
| Appellate Division, First Department |
| In the Matter of Penny B., Appellant, v Gary S.,Respondent. |
—[*1] Patricia Ann Fersch Family Law Center, New York (Patricia Ann Fersch of counsel), forrespondent. Lawyers for Children, Inc., New York (Nancy Dunbar of counsel), Law Guardian.
Order, Family Court, New York County (Elizabeth Barnett, Ref.), entered on or aboutAugust 31, 2007, which denied petitioner mother's motion for the appointment of an additionalforensic evaluator, and order, same court and Referee, entered on or about February 15, 2008,which, inter alia, granted respondent father's petition for custody of the subject child,unanimously affirmed, without costs.
The totality of the circumstances establish that the award of custody to the father was in thebest interests of the child and has a sound and substantial basis in the record (see Eschbach vEschbach, 56 NY2d 167 [1982]; Matter of James Joseph M. v Rosana R., 32 AD3d725 [2006], lv denied 7 NY3d 717 [2006]). In making its determination, the courtconsidered the appropriate factors and recognized that the mother would not be willing or able tofoster an optimum relationship between the father and his child. Indeed, the record shows thatthe mother engaged in a repeated pattern of interference in the father's relationship with the childfollowing the parties' separation, and the father was limited to supervised visitation in the earlystages of the proceedings due to the mother's unfounded allegations of sexual misconduct by himwhile he was with the child (see Matter of Osbourne S. v Regina S., 55 AD3d 465[2008]).
The mother also completely disregarded the best interests of the child by her repeated falseallegations of sexual abuse at the father's hands, which subjected this young child to repeatedexaminations by medical and mental health personnel. Indeed, the evidence shows that themother's focus on the father's purported sexual desire for the child actually caused harm to thechild. She failed to recognize that her reactions to the child's behavior were a factor in theexacerbation of such behavior. Furthermore, the record demonstrates that the father establishedhis clear involvement and concern for his child and that he had been significantly involved withraising the child both preseparation and throughout the proceedings. There was also no evidencethat the father would not foster a relationship between the mother and child (see JamesJoseph M., 32 AD3d at 726).[*2]
The court providently exercised its discretion in denyingthe mother's motion for the appointment of an additional expert in child sexuality (see Matterof Jessica R., 78 NY2d 1031 [1991]; Matter of Fatima M., 16 AD3d 263, 272-273[2005]). The court was sufficiently informed about the child's behavioral problems and theparties' psychological makeup, and had an extensive amount of medical evidence showing thatno sexual abuse had occurred. There was no demonstrated need for the additional appointment,and the court reasonably found that the child had already been subjected to numerousexaminations and would be harmed by additional testing.
The court did not improvidently exercise its discretion when it refused to compel the father'stherapist to testify or to release his records to the mother (see People ex rel. Hickox vHickox, 64 AD2d 412 [1978]). Indeed, the court acted properly when it conducted an incamera review of the therapist's notes, and then, in order to satisfy the mother's concern aboutwhether the father had been consistently attending therapy sessions, the court permitted her toreview the therapist's appointment sheets.Furthermore, the court informed the parties that the therapist had determined that the father didnot pose a risk to the child, and it was unnecessary to release the therapist's notes or for him totestify since the court had sufficient information about the father from other sources. Nor did thecourt err when it denied the mother's request to call the child's therapist as a witness, since it wasapparent that the mother only sought to call the therapist in order to advance her own interests.Concur—Mazzarelli, J.P., Andrias, Nardelli, Catterson and DeGrasse, JJ.