Opinion
03-25-2016
In the Matter of Jeremy SALETTA, Petitioner–Respondent, v. Jessica Lynn VECERE, Respondent–Appellant. In the Matter of Jessica Lynn Vecere, Petitioner–Appellant, v. Jeremy Saletta, Respondent–Respondent.
William D. Broderick, Jr., Elma, for Respondent–Appellant and Petitioner–Appellant. Mark Lewis, Cheektowaga, for Petitioner–Respondent and Respondent–Respondent. Jennifer Paulino, Attorney for the Child, Buffalo.
William D. Broderick, Jr., Elma, for Respondent–Appellant and Petitioner–Appellant.
Mark Lewis, Cheektowaga, for Petitioner–Respondent and Respondent–Respondent.
Jennifer Paulino, Attorney for the Child, Buffalo.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, NEMOYER, and TROUTMAN, JJ.
MEMORANDUM:
In this proceeding pursuant to Family Court Act article 6, respondent-petitioner mother appeals from an order awarding custody of the subject child to petitioner-respondent father. We reject the mother's contention that Family Court committed reversible error in referencing during its bench decision its own out-of-court observations of the mother. Although we agree with the mother that such references constituted error (see Silberman v. Antar, 236 A.D.2d 385, 385, 654 N.Y.S.2d 319 ), we conclude that the error is harmless because the "decision is fully supported by facts within the record" (Matter of Treider v. Lamora, 44 A.D.3d 1241, 1243, 846 N.Y.S.2d 389, lv. denied 9 N.Y.3d 817 ; see Matter of Kayla J. [Michael J.], 74 A.D.3d 1665, 1668, 903 N.Y.S.2d 601 ; see also Matter of Nicole VV., 296 A.D.2d 608, 613, 746 N.Y.S.2d 53, lv. denied 98 N.Y.2d 616, 752 N.Y.S.2d 2, 781 N.E.2d 914 ). Contrary to the mother's further contention, we conclude that the court's decision properly set forth the grounds for its determination (see Matter of Jose L.I., 46 N.Y.2d 1024, 1025–1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059 ; Matter of Zarhianna K. [Frank K.], 133 A.D.3d 1368, 1369, 19 N.Y.S.3d 465 ; cf. Matter of Rocco v. Rocco, 78 A.D.3d 1670, 1671, 910 N.Y.S.2d 826 ).
We further conclude that the court's determination to award custody of the subject child to the father is supported by a sound and substantial basis in the record. It is well settled that " ‘[a] concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child ... as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent’ " (Matter of Amanda B. v. Anthony B., 13 A.D.3d 1126, 1127, 787 N.Y.S.2d 808 ; see Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1681, 12 N.Y.S.3d 684 ). Here, there is a sound and substantial basis in the record for the court's conclusion that the mother interfered with the father's relationship with the child by, inter alia, denying the father access to the child.
The mother further contends that the court erred in admitting in evidence status update reports relating to the father's completion of a court-ordered drug and alcohol evaluation. While we agree with the mother that those reports were improperly admitted in evidence inasmuch as "there was no indication that the records were certified to comply with CPLR 4518 pursuant to CPLR 3122–a" (Sheridan v. Sheridan, 129 A.D.3d 1567, 1567, 12 N.Y.S.3d 434 ), we nonetheless conclude that the error was harmless "because the record otherwise contains ample admissible evidence to support the court's determination" (Matter of Matthews v. Matthews, 72 A.D.3d 1631, 1632, 899 N.Y.S.2d 496, lv. denied 15 N.Y.3d 704, 2010 WL 3397040 ).
Lastly, the mother's contention that the father failed to establish the paternity of the child is raised for the first time on appeal, and therefore, that contention is not properly before us (see Matter of Voorhees v. Talerico, 128 A.D.3d 1466, 1467, 8 N.Y.S.3d 796, lv. denied 25 N.Y.3d 915, 2015 WL 5037920 ). It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.