Opinion
3519.
03-28-2017
In re LAWRENCE C., Petitioner–Respondent, v. ANTHEA P., Respondent–Appellant.
Tennille M. Tatum–Evans, New York, for appellant. Carol L. Kahn, New York, attorney for the children.
Tennille M. Tatum–Evans, New York, for appellant.
Carol L. Kahn, New York, attorney for the children.
FRIEDMAN, J.P., SWEENY, RENWICK, ANDRIAS, MANZANET–DANIELS, JJ.
Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about August 25, 2014, which granted petitioner father's petition for modification of custody, to the extent of awarding the father primary residential custody of the parties' children, with parenting time to respondent mother, and awarding the father final decision-making authority in all areas of the children's life, except religion, unanimously affirmed, without costs, as to the child Maria, and the appeal therefrom, as to the child Theo, unanimously dismissed, without costs, as moot.
The Family Court's determination was based upon an assessment of the parties' credibility, and has a sound and substantial basis in the record (see Eschbach v. Eschbach,
56 N.Y.2d 167, 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). The totality of the circumstances supports the determination that a change in custody to the extent indicated is in the children's best interest (id. at 172, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). As the court found, the children were not thriving in the mother's home or in their former school. The mother also made unilateral decisions regarding the children without informing the father (see Matter of Mildred S.G. v. Mark G., 62 A.D.3d 460, 461, 879 N.Y.S.2d 402 [1st Dept.2009] ). Although some concerns were validly raised by Dr. Cohen regarding how the father's negativity toward the mother is impacting the children's perception of her, the father provided a more nurturing home environment, where the children's educational, emotional and social needs were better met (see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985] ).
To the extent the mother argues that it was error to permit the children's treating psychologist to testify as to confidential matters about the children in the absence of a knowing waiver from the children (see CPLR 4508[a][1] ), the error was harmless (see Matter of Rutland v. O'Brien, 143 A.D.3d 1060, 1063, 41 N.Y.S.3d 292 [3d Dept.2016] ).
The appeal from the order as it pertains to the male child has been rendered moot by the mother's subsequent consent to the father having custody of that child.