| Matter of Backus v Clupper |
| 2010 NY Slip Op 08817 [79 AD3d 1179] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of Serena Backus, Respondent, v Donald Clupper,Appellant. |
—[*1] Mark Diamond, Albany, attorney for the children.
Stein, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), entered June5, 2009, which partially granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of twochildren, a son (born in 2002) and a daughter (born in 2004). The parents and the daughter (hereinafterthe child) are deaf. Pursuant to a June 2007 order, Family Court awarded the mother sole legal custodyof both children, with visitation to the father.[FN1]Thereafter, the mother commenced this proceeding for modification of the father's visitation alleging,among other things, that the father was not following medical instructions related to the child's cochlearimplant usage.[FN2]Family Court issued a temporary order of protection which, as relevant here, [*2]required the father to ensure that the child wore the external attachmentto the cochlear implant while she was awake and in his care. After a hearing, Family Court modified theJune 2007 order by adding a provision directing the father to require the child to wear the cochlearimplant attachment while she is awake, except when she is swimming or bathing. The father nowappeals and we affirm.
" '[A]n existing custody [or visitation] order will be modified only when the party seeking themodification demonstrates a sufficient change in circumstances since entry of the prior order to warrantmodification thereof in the child's best interest' " (Matter of Perry v Perry, 52 AD3d 906, 906 [2008], lv denied11 NY3d 707 [2008], quoting Matter ofKerwin v Kerwin, 39 AD3d 950, 951 [2007]). Here, the mother demonstrated a change incircumstances in that, after the June 2007 order, the child had cochlear implant surgery. Thus, FamilyCourt properly proceeded to determine whether a modification of the order was in the child's bestinterests. In that regard, the father testified that he struggles with the child to get her to wear the externalcochlear attachment and that she will wear it for only one or two hours a day when she is with him. Thefather further testified that he felt that the child's resistance was affecting the quality of their relationshipand of his parenting time with her. The mother testified that the father admitted to her that he did notforce the child to wear the device every day because she did not like to wear it. Based upon herobservations of the child after visits with the father and statements of the child's speech therapist, themother also testified that the child regressed in her hearing abilities.
We reject the father's contentions that he was deprived of a fair hearing due to Family Court'sadmission of hearsay evidence and the court erred in making its determination without expert testimonyas to the medical necessity of wearing the cochlear device on a daily basis. With respect to the hearsaytestimony concerning statements of the child's speech therapist, where, as here, the judge is sitting asthe trier of fact, he or she is presumed to be able to distinguish between admissible evidence andinadmissible evidence and to render a determination based on the former (see People vMoreno, 70 NY2d 403, 406 [1987]). Furthermore, it was not necessary for Family Court todetermine whether the child's use of the cochlear device on a daily basis was medically indicated.Instead, Family Court determined that the father's refusal to comply with the wishes of themother—as the sole custodial parent charged with making healthcare decisions for thechild—that the child consistently utilize such device was interfering with her adaptation to thecochlear implant. Thus, expert testimony was not required. Upon our review of the record andaccording due deference to Family Court's credibility assessments, we find that a sound and substantialbasis exists for the determination that the narrow modification of the prior order of custody andvisitation was warranted in the best interests of the child (see Matter of Cole v Comfort, 63 AD3d 1234, 1235 [2009], lvdenied 13 NY3d 706 [2009]; Matter ofSt. Pierre v Burrows, 14 AD3d 889, 891 [2005]) and we, therefore, decline to disturb it.
The father's remaining contentions have been considered and found to be without merit.
Mercure, J.P., Peters, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: We affirmed that order on a priorappeal (Matter of Clupper v Clupper, 56AD3d 1064 [2008]).
Footnote 2: The issue of whether the childshould have a cochlear implant was previously a source of substantial conflict between theparents—the mother was in favor of such implant, while the father was opposedthereto—and a significant issue in the initial custody proceeding.