ALBERT v. PAMELA (2002)

Respondent waived the right to a plenary hearing on the custody petition and thus Family Court did not err in failing to conduct a hearing (see, Wagner v. Wagner, 222 A.D.2d 1039, 1040, 635 N.Y.S.2d 892;  Bleck v. Brown, 217 A.D.2d 766, 767, 629 N.Y.S.2d 315;  Matter of Thomson v. Thomson, 102 A.D.2d 955, 956, 477 N.Y.S.2d 818;  cf., Matter of Goldman v. Goldman, 201 A.D.2d 860, 861-862, 608 N.Y.S.2d 533;  Matter of Oliver S. v. Chemung County Dept. of Social Servs., 162 A.D.2d 820, 821-822, 557 N.Y.S.2d 729;  Kuleszo v. Kuleszo, 59 A.D.2d 1059, 1060, 399 N.Y.S.2d 801, lv. denied 43 N.Y.2d 647, 403 N.Y.S.2d 1025, 374 N.E.2d 398).   The court's determination to transfer primary physical custody from respondent to petitioner is entitled to great weight and will not be set aside where, as here, it has a sound and substantial basis in the record (see, Matter of Oliver v. Oliver, 284 A.D.2d 934, 935, 725 N.Y.S.2d 507;  Matter of Jones v. Houck, 280 A.D.2d 969, 720 N.Y.S.2d 878;  Matter of Ross v. Trento, 275 A.D.2d 972, 715 N.Y.S.2d 192).   The record establishes respondent's excessive use of corporal punishment (cf., Matter of Kivler v. Olczak, 262 A.D.2d 938, 939, 692 N.Y.S.2d 549), including instances of slamming the parties' 13-year-old daughter against a door, striking her in such a way as to leave marks on her arms, and pulling the hair of the parties' 10-year-old son and hitting him with objects such as a wooden spoon and a hairbrush.   Moreover, the court gave proper weight to the children's preference for living with petitioner (see, Matter of Taylor v. Rivera, 261 A.D.2d 947, 948, 689 N.Y.S.2d 800, citing Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863;  Perez v. Perez, 239 A.D.2d 868, 869, 659 N.Y.S.2d 642).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.