Opinion
1547 CAF 16–01565
02-02-2018
In the Matter of WILLIAM J.B., JR., Petitioner–Respondent, v. DAYNA L.S., Respondent–Appellant.
PAUL A. NORTON, CLINTON, FOR RESPONDENT–APPELLANT. PAUL M. DEEP, UTICA, FOR PETITIONER–RESPONDENT. PAUL SKAVINA, ATTORNEY FOR THE CHILD, ROME.
PAUL A. NORTON, CLINTON, FOR RESPONDENT–APPELLANT.
PAUL M. DEEP, UTICA, FOR PETITIONER–RESPONDENT.
PAUL SKAVINA, ATTORNEY FOR THE CHILD, ROME.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum: Respondent mother appeals from an order that modified a prior custody order by awarding petitioner father primary physical custody of the parties' daughter, with supervised visitation with the mother. Contrary to the mother's contention, Family Court did not abuse its discretion in determining that the daughter's out-of-court statements describing her alleged sexual abuse by the mother's boyfriend were sufficiently corroborated.
Family Court Act § 1046(a)(vi) provides that a child's "previous statements ... relating to any allegations of abuse or neglect shall be admissible in evidence, but if uncorroborated, such statements shall not be sufficient to make a fact-finding of abuse or neglect." Corroboration may be provided by "[a]ny other evidence tending to support the reliability of [the child's] previous statements" (id. ). Although section 1046 is applicable to child protective proceedings, we have routinely applied its provisions as "an exception to the hearsay rule in custody cases involving allegations of abuse and neglect ... where ... the statements are corroborated" ( Matter of Mateo v. Tuttle, 26 A.D.3d 731, 732, 809 N.Y.S.2d 699 [4th Dept. 2006] [internal quotation marks omitted]; see Matter of Ordona v. Campbell, 132 A.D.3d 1246, 1247, 17 N.Y.S.3d 803 [4th Dept. 2015] ; Matter of Sutton v. Sutton, 74 A.D.3d 1838, 1840, 902 N.Y.S.2d 746 [4th Dept. 2010] ).
Here, corroboration was provided by the daughter's " ‘age-inappropriate knowledge of sexual conduct’ ..., which ‘demonstrated specific knowledge of sexual activity’ " ( Matter of Briana A., 50 A.D.3d 1560, 1560, 857 N.Y.S.2d 837 [4th Dept. 2008] ; see Matter of Shardanae T.-L. [Bryan L.], 78 A.D.3d 1631, 1631, 910 N.Y.S.2d 714 [4th Dept. 2010] ; Matter of Breanna R., 61 A.D.3d 1338, 1340, 876 N.Y.S.2d 829 [4th Dept. 2009] ). Moreover, the daughter's statements described unique sexual conduct that the boyfriend engaged in with the daughter, and the father submitted evidence that the mother and her boyfriend had admitted that the boyfriend engaged in such conduct with the mother during their sexual relations (see Matter of Sha–Naya M.S.C. [Derrick C.], 130 A.D.3d 719, 721, 13 N.Y.S.3d 502 [2d Dept. 2015] ; Matter of Leah R. [Miguel R.], 104 A.D.3d 774, 774, 961 N.Y.S.2d 249 [2d Dept. 2013] ; see generally People v. Brewer, 129 A.D.3d 1619, 1620, 12 N.Y.S.3d 453 [4th Dept. 2015], affd 28 N.Y.3d 271, 44 N.Y.S.3d 339, 66 N.E.3d 1057 [2016] ).
Contrary to the mother's remaining contention, the court's determination to award primary physical custody of the child to the father with supervised visitation with the mother is supported by a sound and substantial basis in the record (see Matter of Voorhees v. Talerico, 128 A.D.3d 1466, 1466–1467, 8 N.Y.S.3d 796 [4th Dept. 2015], lv denied 25 N.Y.3d 915, 2015 WL 5037920 [2015] ; see generally Matter of Cobane v. Cobane, 57 A.D.3d 1320, 1321–1322, 870 N.Y.S.2d 569 [3d Dept. 2008], lv denied 12 N.Y.3d 706, 879 N.Y.S.2d 52, 906 N.E.2d 1086 [2009] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.