Opinion
January 11, 1988
Appeal from the Family Court, Nassau County (Cohen, J.).
Ordered that the order is affirmed, without costs or disbursements.
Initially, we note that the Family Court was not divested of jurisdiction by the subsequent commencement of a matrimonial action in the Supreme Court during the pendency of this Family Court proceeding (see, Family Court Act § 651 [b]; Matter of Roy v Roy, 109 A.D.2d 150; Matter of Denzer v Denzer, 56 A.D.2d 601; Matter of Fischman v Fischman, 51 A.D.2d 725; but see, Matter of Poliandro v Poliandro, 119 A.D.2d 577 , appeal dismissed 68 N.Y.2d 908).
The wife's further contention that the hearing court erred in awarding custody of the parties' infant daughter to the husband, and in providing that she have supervised visitation with the child, is also rejected. The forensic evaluation and hearing testimony indicated that the wife was a manic-depressive, suffering from bipolar mental illness, and that she frequently stopped taking the lithium prescribed for her. The court-appointed psychiatrist testified that the wife should have only supervised visitation and the wife's own psychiatrist concurred, testifying that the wife should have only supervised visitation until after she had taken her medication for at least six months. Furthermore, during the hearing, the court observed that the wife's behavior was erratic and that she showed little self-control.
Under the circumstances, we find that the trial court's determination that the husband was the more appropriate custodial parent was proper. While we are not unsympathetic to the wife's plight, we are nonetheless "commanded by law and by sound considerations of policy to resolve custody disputes, not out of sympathy for the circumstances of the parent, but out of concern for the best interest and welfare of the child" (see, Thomas J.D. v Catharine K.D., 79 A.D.2d 1015, 1017, appeal dismissed 53 N.Y.2d 797).
Finally, we find no basis in the record for disturbing the trial court's determination concerning supervised visitation (cf., Thomas J.D. v Catharine K.D., 87 A.D.2d 602). Mangano, J.P., Brown, Lawrence and Sullivan, JJ., concur.