| Matter of Castillo v Luke |
| 2009 NY Slip Op 04322 [63 AD3d 1222] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Douglas V. Castillo, Respondent, v Heidi L. Luke,Appellant. (And Two Other Related Proceedings.) |
—[*1] Holly L. Mosher, Public Defender, Watkins Glen, for respondent. Mary J. Schubert, Law Guardian, Ithaca.
Kavanagh, J. Appeal from an order of the Family Court of Schuyler County (Argenstinger,J.), entered June 25, 2008, which, among other things, partially granted petitioner's application,in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody andvisitation.
In 2001, petitioner (hereinafter the father) and respondent (hereinafter the mother) beganresiding together and, shortly thereafter, the mother gave birth to a daughter, who was not thefather's biological child. The parties continued to live together as a family and, in 2005, themother gave birth to the parties' son. Two years later, the parties ended their relationship and themother moved with both children first to New Jersey and then to Pennsylvania. In August 2007,as a result of custody and visitation petitions brought by both parties, Family Court issued anorder on consent, as to both children, which awarded the mother sole custody and the fatherextensive visitation rights.
In January 2008, after returning with the children to live with the father at his residence, themother filed a Family Ct Act article 8 family offense petition charging the father with aggravatedharassment, and she obtained a temporary order of protection. Family Court [*2]ultimately concluded that the petition failed to state a cause ofaction and dismissed the mother's petition. In response, the father commenced a Family Ct Actarticle 6 proceeding seeking joint custody of the parties' son.[FN*]The mother, in turn, filed a modification petition, asking Family Court to terminate the father'svisitation with both children, prompting the father to file a petition alleging that the mother hadviolated the prior order by not permitting him to visit with the children. Family Court, after ahearing, denied the father's petition for joint custody, but directed that the mother keep himinformed as to the children's medical history and their educational needs and provide him withaccess to relevant school and medical records. The court also denied the mother's modificationpetition and ordered that the father continue to have visitation with both children, but that anycontact he had with them in the evening be supervised until he had successfully completed analcohol rehabilitation program. The mother now appeals.
While the mother now claims that the father did not have standing to seek visitation with thedaughter, the mother did not raise this issue in Family Court and, therefore, that claim is notpreserved for our review (see Matter of Isaiah O. v Andrea P., 287 AD2d 816, 817[2001]). In that regard, the mother initially consented to the entry of the order that allowed forvisitation between the father and the daughter. Her petition to modify that arrangement merelystated that she did "not feel that visitation is necessary" and failed to allege that the father did nothave standing to seek visitation because he was not the daughter's biological parent. In fact, atthe hearing, the mother confirmed that she had agreed to allow the father to visit with bothchildren and had returned to live at his residence in January 2008 with the children for the solepurpose of allowing the father to have "contact and visitation with his children"(emphasis added). Her objection to the father having visitation rights with both children waslimited to her contention that he was an alcoholic who had previously engaged in physicallyabusive behavior and, therefore, any contact he might have with the children was not in their bestinterests. As such, the contentions made by the mother were addressed to the father's fitness as aparent and did not serve to put the father or Family Court on notice that standing was an issue tobe resolved in this proceeding. Therefore, this claim, which the mother raises for the first time onappeal, has not been preserved (see id.).
Moreover, we see no reason to disturb Family Court's conclusion that the evidenceintroduced at the hearing was insufficient to establish that the father had previously assaulted themother. While the father was undoubtedly intoxicated at the time the assault is alleged to haveoccurred, his denial of having any violent contact with the mother was substantially corroboratedby the testimony of the police officer who responded to the residence and noted that there was nophysical evidence that such an assault had taken place. Given the traditional deference we accordFamily Court's assessment of the credibility of witnesses who testified before it, the mother'sclaim of domestic violence was not established by a preponderance of the evidence introduced atthe hearing (see Matter of Boulerice vHeaney, 45 AD3d 1217, 1218 [2007]). On these facts, we see no reason to disturb thecourt's order establishing a visitation schedule for the father with both children and, in particular,its decision that visitation during evening hours be supervised until the father has completed hisalcohol rehabilitation program.
Peters, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: At the hearing, counsel for thefather expanded this request and sought joint custody of both children.