Liza C. v. Noel C.

207 A.D.2d 974, 616 N.Y.S.2d 819

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1994
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Family Court did not err in allowing the probation officer to testify concerning her preparation of a supplemental report and her changed recommendation concerning custody of the parties’ children. Further, the court did not err in considering that recommendation in making its custody determination. The parties consented to the admission of "any and all” probation investigations and evaluations. Thus, the admission of testimony concerning the supplemental report did not contravene the parties’ stipulation. Further, we note that the probation officer’s testimony was elicited during direct examination by respondent’s counsel.

The report of the Law Guardian related that, during an interview with the older child of the parties, the child indicated that he loved his father but he desired to be with his mother and sister. Although it would be improper for the court to rely upon such a hearsay statement (see, Matter of Brice v Mitchell, 184 AD2d 1008), the record does not support respondent’s contention that the court relied upon it. The court conducted an in camera interview with that child, but did not refer to the child’s desires in its decision. Moreover, the evidence strongly supports the court’s determination that an award of physical custody to petitioner is in the children’s best interests. Under the circumstances, any consideration of the hearsay statement by the court was harmless. (Appeal from Order of Oneida County Family Court, Flemma, J.— Custody.) Present—Denman, P. J., Green, Balio, Doerr and Boehm, JJ.