Heintz v. Heintz

275 A.D.2d 971, 713 N.Y.S.2d 709, 2000 N.Y. App. Div. LEXIS 9681

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2000
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Petitioner appeals from an order that denied his petition and granted the cross petition of respondent for sole custody of the parties’ son. Although Family Court erred in awarding temporary custody of the child to respondent without conducting an evidentiary hearing, there is no need to reverse on that basis because the court subsequently conducted a full custody hearing (see, Matter of Smith v Patrowski, 226 AD2d 1073). The record does not support the contention of petitioner that he was prejudiced by the temporary order, which allegedly created a presumption in favor of respondent. The record supports the court’s determination that, given the inability of the parties to communicate with each another, joint custody is not appropriate (see, Matter of Foraker v Foraker, 245 AD2d 1122). Giving due deference to the court, which was able to view the witnesses and best assess their credibility, we conclude that the court’s determination awarding custody to respondent and permitting respondent and the child to live in Fayetteville has a sound and substantial basis in the record (see, Matter of Winkelman v Furey, 273 AD2d 890). Finally, given the lack of evidence that the child is suffering from psychological problems, we cannot conclude that the court abused its discretion in failing to order the parties and the child to submit to a psychological evaluation (see, Matter of Paul C. v Tracy C., 209 AD2d 955). (Appeal from Order of Oneida County Family Court, Cook, J.— Custody.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Lawton, JJ.