Opinion
CAF 01-01852
October 2, 2003.
Appeal from an order of Family Court, Monroe County (O'Connor, J.), entered July 27, 2001, which awarded sole custody of the parties' children to petitioner, with visitation to respondent.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR RESPONDENT-APPELLANT.
CHRISTOPHER J. LARAGY, ROCHESTER (JAMES B. DOYLE, III OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Family Court properly granted sole custody of the parties' children to petitioner father, with visitation to respondent mother. The record establishes that the court carefully weighed all the appropriate factors ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 171-174), and its determination has a sound and substantial basis in the record ( see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113). Contrary to respondent's contention, the court did not limit the testimony to only those events that occurred prior to the filing of the custody petition. We reject respondent's further contention that the court abused its discretion in failing to order the parties and the children to undergo psychological examinations ( see Matter of Heintz v Heintz, 275 A.D.2d 971, 972; Matter of Paul C. v. Tracy C., 209 A.D.2d 955, 955). In this case, neither the parties nor the Law Guardian requested any psychological examinations, and it cannot be said that the court should have sua sponte ordered the examinations where, as here, there otherwise was sufficient testimony from the parties for the court to resolve the custody dispute ( see Matter of Bougor v Murray, 283 A.D.2d 695, 696; Matter of Nunnery v. Nunnery, 275 A.D.2d 986, 987). Respondent contends that the court erred in relying on a hearsay statement made by one of the children to the Law Guardian concerning where the child wanted to attend school ( see Matter of Liza C. v. Noel C., 207 A.D.2d 974; Matter of Brice v. Mitchell, 184 A.D.2d 1008) . Respondent failed to object to the summation of the Law Guardian wherein she referred to the child's hearsay statement, and thus respondent failed to preserve her contention for our review. In any event, any error in the Law Guardian's reference to that statement is harmless. It appears from the court's decision that the court placed minimal, if any, reliance on that hearsay statement ( see Matter of Jelenic v. Jelenic, 262 A.D.2d 676, 678; cf. Brice, 184 A.D.2d 1008). Finally, the court did not abuse its discretion in fashioning respondent's visitation schedule.