Esterle v. Dellay

281 A.D.2d 722, 721 N.Y.S.2d 695, 2001 N.Y. App. Div. LEXIS 2302
Appellate Division of the Supreme Court of the State of New York·Decided March 8, 2001·Published·Cited by 13 cases

Opinion

Lahtinen, J.

Appeals (1) from an order of the Family Court of Ulster County (Mizel, J.), entered January 4, 2000, which granted petitioner’s ' application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ child, and (2) from an order of said court, entered April 20, 2000, which denied respondent’s motion for reconsideration.

Petitioner and respondent, who were never married, are the parents of a daughter born in July 1993. Respondent, a resident of Ulster County, never informed petitioner, a resident of Kentucky, of her pregnancy or of the birth of the child. Petitioner was informed of the birth of the child in September [723]*7231993 by a relative of respondent and contacted respondent but was met with hostility. A paternity proceeding was commenced by or on behalf of petitioner in November 1994 and in July 1995, after genetic testing established petitioner’s paternity, he repeatedly contacted respondent seeking to become a part of the child’s life. Respondent told him she had no intention of permitting him to see the child, that she did not want the child to have a father and that she only wanted child support. An order of paternity was entered in October 1995 and petitioner commenced paying child support, a percentage of the child’s uncovered medical expenses and provided health insurance coverage for the child. He continued to contact respondent attempting to establish a relationship with the child, including an unsuccessful trip to Ulster County in July 1995 for that purpose.

After his attempts to see the child were consistently rebuffed by respondent, petitioner filed a petition in 1996 seeking custody. He met his daughter for the first time in July 1996 after a court appearance in Ulster County and, with respondent’s consent, took the child to Kentucky for a two-week visit in August 1996. At a court appearance in November 1996, the parties resolved that custody proceeding by a consent order which granted respondent sole custody, granted petitioner visitation for eight weeks of the summer and at alternate school recesses, directed respondent to consult with petitioner regarding the child’s health and education, and allowed petitioner access to the child’s medical and school records.

In January 1998 petitioner commenced the instant proceeding alleging that respondent violated the consent order by re- • fusing to consult with him regarding the child’s health and education and that circumstances had changed as respondent was neglecting the child’s medical and dental needs. At the custody hearing which concluded in January 1999, both parties testified and presented other evidence. The court-appointed psychologist also testified and rendered an opinion that the child’s best interest would be served by granting custody to petitioner. On August 13, 1999 Family Court issued a memorandum decision granting petitioner custody of the child. On December 7, 1999 the court handed down a comprehensive decision setting forth detailed reasons for its custody determination and granting respondent specific periods of visitation. Respondent filed a notice of appeal from the resulting order.

In February 2000 respondent moved to renew and reargue the custody order based on information that the court-appointed psychologist had professional disciplinary proceed[724] ings pending against him at the time he interviewed respondent for the custody proceeding and, for the first time, claimed the psychologist had prejudged her case. Family Court denied the motion on the merits and respondent also appeals from that order.

On appeal, respondent claims that the report and testimony of the court-appointed psychologist was so tainted that a new hearing is required, that she was denied a fair and impartial hearing resulting in an order which denied her “fundamental liberty interest” as a custodial parent and that Family Court’s decision was not in the best interest of the child.

Turning first to respondent’s appeal from the denial of her motion to renew or reargue, we note that Family Court properly treated the application as one to set aside a decision after trial (see, CPLR 4404 [b]). Family Court denied respondent’s application, finding that the psychologist’s alleged unfairness towards her occurred during her pretrial sessions with him, was therefore known to her at the time of the hearing and thus was not “new evidence.” Additionally, respondent’s complaint of the psychologist’s alleged bias towards her was not explored on his cross-examination and she failed to show how an evaluation by another psychologist would have resulted in a different decision (see, e.g., S.A.B. Enters. v Stewart’s Ice Cream Co., 242 AD2d 845, lv dismissed 91 NY2d 848). Family Court further found that proof of disciplinary proceedings against the psychologist and his alleged bias towards her only served to impeach his credibility and did not constitute new evidence which would warrant a new hearing (see, Texido v S & R Car Rentals Toronto, 244 AD2d 949, lv dismissed and denied 91 NY2d 938). We find no abuse of discretion in Family Court’s decision denying respondent’s motion, a decision which is fully supported by the record (see, Di Bernardo v Gunneson, 65 AD2d 828).

With respect to respondent’s appeal from Family Court’s order granting custody of the child to petitioner, we find no merit to her claim that she was denied a fair and impartial hearing which resulted in that order, the effect of which was to “banish” the child to Kentucky, depriving her of the “fundamental liberty interest” of a custodial parent, contrary to the policy encouraging a strong relationship between a child and both parents (see, Weiss v Weiss, 52 NY2d 170). Respondent provides no authority for such a claim nor did she seek to modify the visitation schedule fashioned by Family Court which she contends deprives her of contact with the child for extended periods of time. Further, her conclusory allegation that she [725] was denied a fair and impartial hearing is belied by the proof and by Family Court’s thorough and thoughtful decision.

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Esterle v. Dellay, 281 A.D.2d 722, 721 N.Y.S.2d 695, 2001 N.Y. App. Div. LEXIS 2302 (N.Y. Ct. App. 2001).

281 A.D.2d 722 (Esterle v. Dellay) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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