| Matter of Matthews v Matthews |
| 2010 NY Slip Op 03697 [72 AD3d 1631] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of Guadalupe Matthews, Respondent, v EdwardMatthews, Appellant. |
—[*1] Frank H. Hiscock Legal Aid Society, Syracuse (Robert P. Rickert of counsel), forpetitioner-respondent. Theodore W. Stenuf, Law Guardian, Minoa, for Aaron M. and Anna M.
Appeal from an order of the Family Court, Onondaga County (Robert J. Rossi, J.), enteredMarch 22, 2006 in a proceeding pursuant to Family Court Act article 6. The order, among otherthings, continued the award of physical and legal custody of the parties' children to petitioner.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent father appeals from an order that, inter alia, continued the awardof physical and legal custody of the parties' two children to petitioner mother, reduced thefather's visitation with the children to one weekend every three months, and prohibited the fatherfrom discussing religion with the children. Contrary to the father's contention, Family Court didnot abuse its discretion in continuing the award of custody to the mother. The ability of the fatherover that of the mother to provide for certain material needs of the children is only one factor toconsider in determining the best interests of the children (see generally Matter of Maher v Maher, 1 AD3d 987, 988-989[2003]). Here, the record further establishes that the father frequently disparaged the mother inthe children's presence, consistently used his religion in an attempt to alienate the mother fromthe children, and disregarded court orders concerning the mother's right to choose the religiousupbringing of the children. Affording great deference to the court's credibility assessments(see generally Eschbach v Eschbach, 56 NY2d 167, 173 [1982]; Matter of Thayer vEnnis, 292 AD2d 824 [2002]), we conclude that the court's custody determination issupported by "a sound and substantial basis in the record" and thus should not be disturbed (Matter of James D. v Tammy W., 45AD3d 1358 [2007]). We further conclude that the court's determination that effectivelydenies the father visitation with the children is supported by " 'compelling reasons andsubstantial evidence that such visitation is detrimental to the child[ren]'s welfare' " (Murek vMurek [appeal No. 2], 292 AD2d 839, 840 [2002]; see Matter of Adam H., 195AD2d 1074 [1993]), and thus has a sound and substantial basis in the record (see Matter ofBrocher v Brocher, 213 AD2d 544 [1995], lv denied 86 NY2d 701 [1995]).Furthermore, in light of the evidence in the [*2]record that thefather harmed the children by disobeying court orders and using religion to alienate them fromthe mother, we conclude that the court did not abuse its discretion by prohibiting the father fromdiscussing religion with the children. Although "the court would be intruding on. . . [the] First Amendment rights [of the father] were it to enjoin [him] fromdiscussing religion with his child[ren] absent a showing that the child[ren] will thereby beharmed," here, as noted, there was such a showing (Matter of Bentley v Bentley, 86AD2d 926, 927 [1982]; cf. Matter ofBooth v Booth, 8 AD3d 1104, 1106 [2004], lv denied 3 NY3d 607 [2004]).
Finally, the father failed to preserve for our review his contention that the court erred inadmitting a report containing recommendations that were based on inadmissable hearsayinasmuch as he did not object to the admission of that report on that specific ground (seeBalsz v A & T Bus Co., 252 AD2d 458 [1998]). In any event, any error in the admission ofthat report is harmless because the record otherwise contains ample admissible evidence tosupport the court's determination (seeLubit v Lubit, 65 AD3d 954, 955-956 [2009], lv denied 13 NY3d 716 [2010];Murtari v Murtari, 249 AD2d 960, 961 [1998], appeal dismissed 92 NY2d 919[1998]). Present—Martoche, J.P., Smith, Fahey, Peradotto and Green, JJ.