Opinion
June 15, 1992
Appeal from the Supreme Court, Queens County (Hyman, J.H.O.).
Ordered that the order is affirmed, with costs.
The parties were married on December 4, 1977, and divorced pursuant to a judgment dated April 15, 1987. They have one child, born August 9, 1984, who is the subject of this proceeding. The judgment of divorce awarded custody of the child to the mother and established a visitation schedule for the father. That schedule was subsequently modified and the father is presently entitled to visitation (a) every Saturday from 9:00 A.M. until 8:30 P.M., (b) from the eve of religious holidays until 8:30 P.M. (when there is no school for the child the following day), (c) various religious holidays, (d) alternate legal holidays, (e) the child's birthday in alternate years, (f) Father's Day, and (g) the father's birthday. The father moved for an order expanding this visitation schedule to provide for overnight visitation. The mother opposed any modification based upon, inter alia, her belief that the father was not an appropriate role model for the young child as evidenced by the father's history of cross-dressing. After a full and complete hearing where both parents, the father's present wife, an Orthodox Rabbi, two psychologists, and a psychiatrist testified, the hearing court denied the father's application. We affirm.
Any custody or visitation determination depends heavily upon the court's assessment of the credibility of the witnesses and of the character and temperament of the parents, and, therefore, the findings of the trial court are generally accorded the greatest respect (Eschbach v. Eschbach, 56 N.Y.2d 167; Matter of Robert T.F. v. Rosemary F., 148 A.D.2d 449). Moreover, where there is a conflict in the evidence, this court accords deference to the hearing court which has seen and evaluated the evidence firsthand (see, Matter of Thomas S. v. Kathleen Z., 149 A.D.2d 599, 600). The record here contains contradictory testimony from the parties and their witnesses regarding the duration and extent of the father's cross-dressing activities. Although the Supreme Court improperly relied on hearsay evidence concerning the then five-year-old child's preferences in making its determination, we conclude that the decision not to expand visitation so as to include overnight stays with the father by this impressionable child has a sound and substantial basis in the record and that, at this point, the visitation schedule should not be changed (see, Alfano v. Alfano, 151 A.D.2d 530, 531). Harwood, J.P., Balletta, O'Brien and Ritter, JJ., concur.