Esterle v. Dellay

281 A.D.2d 722, 721 N.Y.S.2d 695, 2001 N.Y. App. Div. LEXIS 2302
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 8, 2001
StatusPublished
Cited by13 cases

This text of 281 A.D.2d 722 (Esterle v. Dellay) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
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).

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]*724ings 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]*725was denied a fair and impartial hearing is belied by the proof and by Family Court’s thorough and thoughtful decision.

Respondent also argues that Family Court erred in its finding that it would be in the best interest of the child to be placed in the custody of petitioner. We disagree. Petitioner sought modification of an existing custody arrangement, requiring “ ‘a showing of sufficient change in circumstances reflecting a real need for change in order to insure the continued best interest of the child’” (Matter of Markey v Bederian, 274 AD2d 816, 817, quoting Matter of Van Hoesen v Van Hoesen, 186 AD2d 903; see, Matter of Hrusovsky v Benjamin, 274 AD2d 674, 675). Such a custody determination must focus on the child’s best interest (see, Eschbach v Eschbach, 56 NY2d 167, 171) and requires consideration of a number of factors, including the quality of the parents’ respective home environments, the length of time of the custodial arrangement sought to be modified, each parent’s past performance and relative fitness, and their ability to guide and provide for the child’s intellectual and emotional development (see, Matter of Hrusovsky v Benjamin, supra, at 675; Matter of De Losh v De Losh, 235 AD2d 851, 852, lv denied 89 NY2d 813; Matter of Alice A. v Joshua B., 232 AD2d 777). In this case, Family Court’s assessment of those factors, which resulted in its determination that there had been a change in circumstances and that the child’s “best interests would be substantially enhanced by the transfer of custody”

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Bluebook (online)
281 A.D.2d 722, 721 N.Y.S.2d 695, 2001 N.Y. App. Div. LEXIS 2302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esterle-v-dellay-nyappdiv-2001.