AMY v. BRENDAN (2007)

Family Court properly granted the petition seeking to modify the parties' existing joint custody arrangement by awarding sole custody of the parties' child to petitioner and visitation to respondent.   Contrary to respondent's contention, the custody determination “is supported by a sound and substantial basis in the record” and thus will not be disturbed (Sorce v. Sorce, 16 A.D.3d 1077, 1077, 793 N.Y.S.2d 304;  see Matter of Westfall v. Westfall, 28 A.D.3d 1229, 1230, 813 N.Y.S.2d 623, lv. denied 7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244;  Matter of Thayer v. Ennis, 292 A.D.2d 824, 825, 739 N.Y.S.2d 321).   Also contrary to respondent's contention, the record establishes that the court properly weighed the appropriate factors in awarding sole custody to petitioner (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of John P.R. v. Tracy A.R., 13 A.D.3d 1125, 786 N.Y.S.2d 877;  Matter of Schlafer v. Schlafer, 6 A.D.3d 1202, 775 N.Y.S.2d 711), including an evaluation of the character and relative parental fitness of the parties (see Matter of Pinkerton v. Pensyl, 305 A.D.2d 1113, 757 N.Y.S.2d 921;  see also Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   The record does not support the contention of respondent that the court was biased against him (see Matter of Jocelyne J., 8 A.D.3d 978, 778 N.Y.S.2d 624;  Matter of Angie M.P., 291 A.D.2d 932, 933, 737 N.Y.S.2d 490, lv. denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835).

Respondent further contends that reversal is required because the court asked the Law Guardian to submit a “confidential report” to the court, ex parte, on the issue of custody (see generally Matter of Cobb v. Cobb, 4 A.D.3d 747, 771 N.Y.S.2d 476, lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38).   Respondent failed to preserve that contention for our review (see generally Matter of Tracy v. Tracy, 309 A.D.2d 1252, 1253, 765 N.Y.S.2d 548).   In any event, even assuming, arguendo, that the court requested the report and considered it, we conclude that “[i]t appears from the court's decision that the court placed [no] reliance” on the contents of the report (id.).   In addition, the Law Guardian's report did not refer to any facts or allegations not otherwise fully explored at the hearing.   We thus conclude that any error with respect to the alleged confidential report is harmless (see id.;  Matter of Jelenic v. Jelenic, 262 A.D.2d 676, 678, 690 N.Y.S.2d 782).

Finally, we decline to grant petitioner's request for an award of attorney's fees incurred in responding to this appeal (cf. Burke v. Burke, 185 A.D.2d 625, 587 N.Y.S.2d 234).

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

MEMORANDUM: