| Matter of Taylor v Taylor |
| 2009 NY Slip Op 04251 [62 AD3d 1015] |
| May 26, 2009 |
| Appellate Division, Second Department |
| In the Matter of Horace Taylor, Respondent, v MarciaTaylor, Appellant. |
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Yasmin Daley Duncan, Brooklyn, N.Y., for respondent.
In a child custody proceeding pursuant to Family Court Act article 6, and a related familyoffense proceeding pursuant to Family Court Act article 8, the mother appeals, as limited by herbrief, from so much of an order of the Family Court, Dutchess County (Forman, J.), enteredJanuary 16, 2008, as, after a hearing, granted the father's petition to modify a prior custody orderof the same court awarding her physical custody of the child, so as to award him sole custody ofthe subject child, and granted the father's family offense petition to the extent of finding, ineffect, that she committed a family offense within the meaning of Family Court Act § 812,and issuing an order of protection for a period of one year.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofgranting the father's family offense petition to the extent of finding, in effect, that the mothercommitted a family offense within the meaning of Family Court Act § 812, and issuing anorder of protection for a period of one year, and substituting therefor a provision denying thefamily offense petition in its entirety; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements.
To modify an existing custody arrangement, there must be a showing of a change ofcircumstances such that modification is required to protect the best interests of the child (see Matter of Zeis v Slater, 57 AD3d793 [2008]; Matter of Wirth vWirth, 56 AD3d 787 [2008]). The best interests of the child are determined by a reviewof the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]). Deference should be accorded the hearing court, which observed the witnesses, and thehearing court's custody determination should not be set aside unless it lacks a sound andsubstantial basis in the record (seeMatter of Weinberg v Weinberg, 52 AD3d 616 [2008]; Matter of Fallarino v Ayala, 41 AD3d714 [2007]). Here, the Family Court's determination that it was in the child's best interests toaward sole custody to the father is supported by a sound and substantial basis in the record, andwe decline to disturb it.
Although the Family Court improvidently exercised its discretion in admitting into evidence,over the mother's objections, the reports of the psychologist who supervised the visits betweenthe mother and child (see Kesseler v Kesseler, 10 NY2d 445 [1962]; Matter of NicoleVV., 296 AD2d 608 [2002]; Matter of Chambers v Bruce, 292 AD2d 525 [2002];Wilson v Wilson, 226 AD2d 711 [1996]), the error in admitting the reports was notprejudicial. "There is a sound and substantial basis in the record for the Family Court's [*2]determination without consideration of the improperly admittedreport[s]" (Matter of Tercjak vTercjak, 49 AD3d 772, 773 [2008]; see Matter of D'Esposito v Kepler, 14 AD3d 509 [2005]).
Although the order of protection has expired, in light of the enduring consequences whichmay potentially flow from an adjudication that a party has committed a family offense, theappeal is not academic (see Matter ofGarland v Garland, 3 AD3d 496 [2004]; Matter of Hogan v Hogan, 271 AD2d533 [2000]). The record does not support a determination that the mother committed a familyoffense warranting the issuance of the order of protection (see Family Ct Act §812 [1]; § 832; Matter of Cavanaugh v Madden, 298 AD2d 390 [2002]).Accordingly, the Family Court erred in granting the father's family offense petition to the extentof finding, in effect, that the mother committed a family offense and issuing the order ofprotection. Rivera, J.P., Santucci, Chambers and Hall, JJ., concur.