| Matter of Owens v Garner |
| 2009 NY Slip Op 04511 [63 AD3d 1585] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Cheryl R. Owens, Respondent, v Wade K. Garner,Appellant. |
—[*1] Alan Birnholz, East Amherst, for petitioner-respondent. Mindy L. Marranca, Law Guardian, Buffalo, for Renee C.G.
Appeal from an order of the Family Court, Erie County (Marjorie C. Mix, J.H.O.), enteredDecember 12, 2007 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, granted petitioner sole custody of the parties' children.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order modifying a prior order pursuant towhich he had sole custody of the parties' children, with visitation to petitioner mother, byawarding the mother sole custody of the children, with visitation to the father. Although weagree with the father that Family Court erred in granting temporary custody of the children to themother without conducting a full evidentiary hearing (see Matter of Smith v Brown, 272AD2d 993 [2000]), we conclude that the error is harmless because the Judicial Hearing Officer(JHO) " 'subsequently conducted the requisite evidentiary hearing' " (Matter of Darryl B.W. v Sharon M.W.,49 AD3d 1246, 1247 [2008]).
Contrary to the father's further contention, there is a sound and substantial basis in the recordto support the JHO's determination following the hearing (see generally id.; Matter of Jennifer L.B. v Jared R.B., 32 AD3d1174 [2006]; Matter of Carl G. vOneida County Dept. of Social Servs., 24 AD3d 1274, 1275 [2005]; Matter of Greenv Mitchell, 266 AD2d 884 [1999]). " 'It is well established that alteration of an establishedcustody [and visitation] arrangement will be ordered only upon a showing of a change incircumstances which reflects a real need for change to ensure the best interest[s] of thechild[ren]' " (Matter of Amy L.M. v Kevin M.M., 31 AD3d 1224, 1225 [2006]; see Matter of Connie L.C. v EdwardC.B., 45 AD3d 1374 [2007]). Here, the mother established that the father interferedwith the mother's visitation with the children under the prior order, that the children's gradesdeclined while the children were in the father's care, that the father failed to seek proper andnecessary medical and dental treatment for the children, and that he had used a belt to "whip" thechildren on at least one occasion. That evidence, as well as the evidence that the children werethriving in the mother's care and preferred to reside with the mother, supports the JHO'sdetermination that an award of sole custody to the mother is in the best interests of the [*2]children (see generally Matter of Maher v Maher, 1 AD3d 987, 989 [2003];Fox v Fox, 177 AD2d 209, 210 [1992]).
We reject the contention of the father that he was denied a fair hearing. Contrary to hiscontention, his request that the JHO recuse herself did not constitute a withdrawal of his consentto have the matter handled by the JHO. Also, contrary to the contention of the father, the recordfails to establish that the JHO was biased against him. Although the JHO elicited substantialtestimony from the father during the mother's cross-examination of him, he did not object to theJHO's questioning, and the questions sought only clarification or further explanation oftestimony from both parties (cf. Matterof Yadiel Roque C., 17 AD3d 1168, 1169 [2005]). Present—Scudder, P.J.,Martoche, Fahey, Peradotto and Green, JJ.