JAMES v. JENNIFER (1998)

 Family Court did not abuse its discretion in awarding custody of the child to petitioner father.   The court was “in the best position to evaluate the character and credibility of the witnesses” (Matter of Paul C. v. Tracy C., 209 A.D.2d 955, 956, 622 N.Y.S.2d 159), and its determination is supported by the record (see, Matter of Gill v. Gill, 135 A.D.2d 1090, 1090-1091, 523 N.Y.S.2d 309).   The court credited the testimony of a doctor who opined that the child had cigarette burns and who stated that the child told him that respondent mother caused the burns.

 Even assuming, arguendo, that the court erred in refusing to allow into evidence a file from the Department of Social Services in North Carolina because it did not have a seal attached to it, we conclude that any error is harmless.   The court was aware that no criminal charges had been brought against respondent mother as a result of the investigation in North Carolina.   Similarly, although the court erred when it stated that it was taking judicial notice of the fact that “mommy” meant respondent mother, the court was entitled to make a factual determination on that issue based on the testimony of the parties.

Amended order unanimously affirmed without costs.

MEMORANDUM: