Opinion
October 19, 1992
Appeal from the Family Court, Queens County (DePhillips, J.).
Ordered that the order is affirmed, with costs.
The father contends that the Family Court erred in transferring custody of the child to her mother. We disagree. In considering questions of child custody, the best interests of the child are paramount (Eschbach v Eschbach, 56 N.Y.2d 167, 171). Although the authority of the Appellate Division in making custody determinations is as broad as that of the trial court (Matter of Louise E.S. v W. Stephen S., 64 N.Y.2d 946), respect is to be accorded to the Trial Judge's advantage in being able to observe the demeanor and to assess the credibility of the witnesses (Matter of Louise E.S. v W. Stephen S., supra). The court must consider the totality of the circumstances in assessing whether custody should be changed (Eschbach v Eschbach, supra).
Although "priority * * * is accorded the first award" (Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 94), it is nevertheless "but one factor to be weighed by the court in deciding whether a change of custody is warranted" (Eschbach v Eschbach, supra, at 171; see, Friederwitzer v Friederwitzer, supra, at 93-94). Further, where the first award is the result of a stipulation, as here, it is entitled to less weight than a disposition after a plenary trial (Friederwitzer v Friederwitzer, supra; Matter of Patsy M.C. v Lorna W.C., 165 A.D.2d 813).
Moreover, this Court has noted that "`interference with the relationship between a child and a noncustodial parent by the custodial parent has been said to be an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as a custodial parent (Daghir v Daghir, 82 A.D.2d 191, affd 56 N.Y.2d 438) '" (Skolnick v Skolnick, 142 A.D.2d 570, 571).
In view of the totality of the circumstances, we find that the court's transfer of custody of the child to her mother is supported by a sound and substantial basis in the record (see, Matter of Coyne v Coyne, 150 A.D.2d 573; Skolnick v Skolnick, supra). Although the father had custody of the child since 1986 by agreement of the parties, the father consistently attempted to undermine, if not eradicate, the child's relationship with her mother, and to portray the mother as a child abuser. Moreover, it was the recommendation of Dr. Robert Kaplan, the court-appointed psychiatrist, after conducting evaluations of all the parties, that permanent custody be awarded to the mother. We also note that the Law Guardian recommended that the mother have custody.
In addition, the father's actions during the custody proceeding demonstrated his unwillingness for the child to have a relationship with her mother. For example, in defiance of the court's admonishment to him, the father interfered with the mother's visitation by failing to timely transfer temporary custody of the child to her mother in accordance with an order dated June 28, 1991.
We also find no merit to the father's claim that the court failed to appoint an independent psychiatric expert to conduct forensic evaluations of the parents and the child as it was directed to by this Court (see, Matter of Dorothy T. v Carl J.B., 169 A.D.2d 771). The court appointed Dr. Robert Kaplan, the only psychiatrist employed with the Mental Health Services affiliated with the Queens County Family Court. The doctor's services were not paid for by either party in this proceeding and there is nothing in this record to suggest that the doctor had a personal interest in this case or was otherwise biased.
Similarly unavailing is the father's challenge to the visitation schedule fashioned by the court. The visitation granted herein insures meaningful contact between the father and his child (De La Torre v De La Torre, 183 A.D.2d 744; Matter of Thomas S. v Kathleen Z., 149 A.D.2d 599). Supervised visitation is not considered a deprivation to meaningful access to a child (Lightbourne v Lightbourne, 179 A.D.2d 562), and in this case has a sound and substantial basis in the record (Matter of Thomas S. v Kathleen Z., supra).
The father's remaining contention does not require reversal. O'Brien, J.P., Copertino, Pizzuto and Santucci, JJ., concur.