| Matter of Mackenzie V. v Patrice V. |
| 2010 NY Slip Op 04674 [74 AD3d 1406] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Mackenzie V., Respondent, v Patrice V.,Appellant. (And Two Other Related Proceedings.) |
—[*1] J. Russell Langwig III, Schoharie, for respondent. Teresa A. Meade, Middleburgh, attorney for the child.
Kavanagh, J. Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.),entered March 27, 2009, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act articles 6 and/or 8, for custody of the parties' child.
In 2007, after respondent (hereinafter the mother) was hospitalized on two separateoccasions and received treatment for psychological maladies, petitioner (hereinafter the father)commenced the first of these three proceedings seeking custody of their child (born in 2005). Inresponse, the mother filed a family offense petition and petition for custody claiming, amongother things, that she had been sexually and verbally abused by the father. After a hearing,Family Court found that the mother was unable to properly function as a parent and concludedthat the father should have legal and physical custody of their child.[FN*]The court granted the [*2]father's petition and dismissed themother's custody and family offense petitions, but awarded her supervised visitation. The motherappeals.
In determining custody, Family Court was required to "assess the best interests of the childby considering factors such as the child's age and wishes, and the parents' relative fitness,stability and previous performance, as well as their respective home environments and abilitiesto guide the child, provide for his well-being, and encourage his relationship with the otherparent" (Matter of Dana A. v MartinB., 72 AD3d 1136, 1137 [2010]; see Eschbach v Eschbach, 56 NY2d 167, 171[1982]; Matter of Richardson vAlling, 69 AD3d 1062, 1063 [2010]; Matter of Eck v Eck, 33 AD3d 1082, 1083 [2006]). Here, FamilyCourt concluded that as a result of the mother's mental illness and her unstable mental condition,the child's best interests were served by custody being awarded to the father.
This determination was based on a number of factors, including conclusions arrived at byJeffry Luria, a psychologist who performed court-ordered psychological evaluations on themother and the father. As for the mother, Luria concluded that she was highly unstable,"suffering from a moderately serious psychological disorder, certainly major depression, withpossibly psychotic features notably paranoid in nature," and her interactions with the child wereinconsistent and, at times, neglectful. As for the father, Luria found "no evidence of significantpsychopathology which would preclude his caring for his son." Family Court also relied upon asecond evaluation of the parties performed by psychologist Steven Silverman at the request ofthe Schoharie County Department of Social Services. Silverman found that the mother "placesher child at risk because she is just unpredictable with what she will say or do with her child"and that she "suffers from delusions, a major psychiatric issue" and "has tenuous ties to reality,"requiring further psychiatric diagnosis and medication evaluation. Silverman found that thefather "is basically a person within normal limits," who appears capable of providing care for asmall child. Moreover, Family Court, in determining the child's best interests, took note of themother's insistence that, for unknown reasons, she was targeted by the mafia and attempts hadbeen made by unknown persons to poison her and subject her to a sexually transmitted disease.When viewed as a whole, this evidence provided a sound and substantial basis for Family Court'sdeterminations that the mother's claims that the father abused her as set forth in the familyoffense petition were incredible and that the child's interests would be best served by awardingthe father custody (see Matter of Yishakv Ashera, 68 AD3d 1282, 1283 [2009]; Matter of Holle v Holle, 55 AD3d 991, 992 [2008]; Matter of Boulerice v Heaney, 45AD3d 1217, 1218 [2007]; Matterof Hissam v Mackin, 41 AD3d 955, 957 [2007], lv denied 9 NY3d 809 [2007]).
The mother also contends that Family Court improperly delegated to the supervising agencythe authority to determine the frequency and duration of her visits with the child when it directedthat she have "supervised visitation at least one hour per week, supervised by the SchoharieCounty Department of Social Services or another independent agency." However, the same orderalso provides that once the mother's mental condition has stabilized through treatment from apsychiatrist, "she is encouraged to petition for unsupervised and/or increased visitation." Readtogether, the order does not improperly delegate to the agency the terms of visitation, butappropriately provides that until the mother has responded positively to treatment, her access tothe child will be limited and must be supervised (compare Matter of St. Pierre v Burrows, 14 AD3d 889, 892[2005]; see also Matter of Millett v Millett, 270 AD2d 520, 522 [2000]). Therefore, wefind no reason to disturb the visitation order.[*3]
Finally, Family Court did not abuse its discretion byrefusing to grant the mother an adjournment on the final day of this extended proceeding toallow her to call an expert witness (seeMatter of Sumner v Lyman, 70 AD3d 1223, 1225 [2010], lv denied 14 NY3d709 [2010]; see generally Matter ofCukerstein v Wright, 68 AD3d 1367, 1368 [2009]; Matter of Adams v Bracci, 61 AD3d 1065, 1066 [2009], lvdenied 12 NY3d 712 [2009]).
Mercure, J.P., Peters, Spain and Rose, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The father also has custody ofan infant child from another relationship. The mother also has another child, who was placedwith that child's biological father after the mother's hospitalization.