Peter S. v. Cheryl A. S.

190 A.D.2d 1038, 593 N.Y.S.2d 656, 1993 N.Y. App. Div. LEXIS 1248

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Order unanimously affirmed without costs. Memorandum: In this proceeding to determine visitation rights pursuant to Family Court Act § 651, the Law Guardian for the children appeals on their behalf from an order which resolved the visitation dispute in favor of the mother and limited the father to supervised visitation with the children, based on the court’s finding that he had sexually abused his young daughter. In making that finding, the court relied on the children’s out-of-court statements to their mother and to various social workers, the mother’s observation of sex play between the children, and the lack of apparent motive on the mother’s part to falsify the accusation.

We conclude that the Law Guardian failed to preserve her challenge to the court’s consideration of the children’s statements. The Law Guardian failed to object to numerous items of hearsay and double hearsay and indeed repeatedly elicited such improper testimony herself. Additionally, we reject the Law Guardian’s contention that there was insufficient corroboration of the children’s statements to warrant a finding of sexual abuse. In our view, Family Court Act § 1046 (a) (vi), which by its terms is expressly applicable to article 10 proceedings, is not applicable to this article 6 proceeding. In any event, even assuming that corroboration is required, we conclude that the observations by the mother corroborated the hearsay statements of the children. (Appeal from Order of Monroe County Family Court, Kohout, J. — Visitation.) Present —Denman, P. J., Pine, Balio, Fallon and Davis, JJ.