DeWaal v. DeWaal

249 A.D.2d 1003, 671 N.Y.S.2d 367, 1998 N.Y. App. Div. LEXIS 5182

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 29, 1998
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Pursuant to the separation agreement of the parties, which was incorporated but not merged in the judgment of divorce, the parties’ two children resided with defendant and plaintiff had liberal visitation. After both parties remarried and the children were diagnosed with attention deficit disorder, plaintiff sought primary physical custody of the children based upon allegations, inter alia, that defendant was having difficulty in dealing with the children’s condition. Supreme Court ordered that plaintiff have primary physical custody and that defendant have liberal visitation based upon testimony from various professionals involved in the care and treatment of the children.

The court properly determined that there was “a change in circumstances which reflects a real need for change to ensure the best interest of the child [ren]” (Matter of Irwin v Neyland, 213 AD2d 773). The court’s determination that defendant is less fit to continue as primary custodian is fully supported by the evidence and should not be disturbed. Because the evidence was sufficient to enable the court to decide plaintiff’s motion and because it is within the court’s discretion to determine whether a psychological evaluation of the parties is needed, the court did not err in proceeding without one (see, Matter of Smith v Kalman, 235 AD2d 848, 849; Matter of Paul C. v Tracy C., 209 AD2d 955). Furthermore, the court did not err in rejecting the recommendation of the Law Guardian and properly explained its reasons for rejecting that recommendation (see, Fisher v Fisher, 206 AD2d 910). (Appeal from Order of Supreme Court, Monroe County, Wagner, J.H.O. — Custody.) Present— Pine, J. P., Lawton, Hayes, Wisner and Boehm, JJ.