| Matter of Elizabeth HH. v Richard II. |
| 2010 NY Slip Op 05818 [75 AD3d 670] |
| July 1, 2010 |
| Appellate Division, Third Department |
| In the Matter of Elizabeth HH., Respondent, v Richard II.,Appellant. (And Two Other Related Proceedings.) |
—[*1] Francisco P. Berry, Ithaca, for respondent. Dorothy K. Stevens, Elmira, attorney for the child.
Mercure, J.P. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered January 26, 2009, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties are the parents of a daughter born in 2007. After petitioner (hereinafter themother) left the parties' residence with the child in 2008, she filed a custody petition andobtained temporary custody of the child. Respondent (hereinafter the father) cross-petitioned forcustody of the child, and later filed a petition alleging that the mother had violated a temporaryorder of visitation. Following a combined hearing on the custody and violation petitions, FamilyCourt granted the mother sole custody of the child, with the father to have specified visitation,and denied the father's violation petition. The father appeals and we now affirm.
The sole argument of the father upon appeal is that he was denied the effective assistance ofcounsel, a claim that requires him to demonstrate that he was deprived of reasonably competentand, thus, meaningful representation (see Matter of Hurlburt v Behr, 70 AD3d 1266, 1267 [2010];Matter of Thompson v Gibeault, 305 AD2d 873, 875 [2003]). [*2]Counsel's alleged omissions, however, can be readily explained aslegitimate trial tactics (see Matter ofHissam v Mackin, 41 AD3d 955, 957 [2007], lv denied 9 NY3d 809 [2007]; Matter of Kemp v Kemp, 19 AD3d748, 751 [2005], lv denied 5 NY3d 707 [2005]). For example, counsel could haveconcluded that it would not benefit the father to dwell upon his denial of abusing the mother and,specifically, his belief that his routine slapping of the mother was "playful."[FN*]Likewise, counsel appropriately cross-examined a psychologist who conducted independentexaminations of both parties. In particular, we cannot fault counsel for declining tocross-examine the psychologist regarding the father's prior mental health treatment records.Those records indicate that the father dropped out of treatment and, in any event, the fatherrefused to permit the psychologist to review the records while conducting his evaluation. Finally,the benefit of requesting a second psychological examination as urged by the father was whollyspeculative (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1133-1134 [2010]).Given the totality of the circumstances presented herein, we conclude that the father receivedmeaningful representation.
Malone Jr., Kavanagh, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Family Court cited that belief asproof that the father's insight and judgment were poor.