IN RE: GUADALUPE MATTHEWS (2010)

MEMORANDUM AND ORDER

THEODORE W. STENUF, LAW GUARDIAN, MINOA, FOR AARON M. AND ANNA M.

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

Memorandum:  Respondent father appeals from an order that, inter alia, continued the award of physical and legal custody of the parties' two children to petitioner mother, reduced the father's visitation with the children to one weekend every three months, and prohibited the father from discussing religion with the children.   Contrary to the father's contention, Family Court did not abuse its discretion in continuing the award of custody to the mother.   The ability of the father over that of the mother to provide for certain material needs of the children is only one factor to consider in determining the best interests of the children (see generally Matter of Maher v Maher, 1 AD3d 987, 988-989).   Here, the record further establishes that the father frequently disparaged the mother in the children's presence, consistently used his religion in an attempt to alienate the mother from the children, and disregarded court orders concerning the mother's right to choose the religious upbringing of the children.   Affording great deference to the court's credibility assessments (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 173;  Matter of Thayer v. Ennis, 292 A.D.2d 824), we conclude that the court's custody determination is supported by “a sound and substantial basis in the record” and thus should not be disturbed (Matter of James D. v. Tammy W., 45 AD3d 1358).   We further conclude that the court's determination that effectively denies the father visitation with the children is supported by “ ‘compelling reasons and substantial evidence that such visitation is detrimental to the child[ren]'s welfare’ “ (Murek v. Murek [appeal No. 2], 292 A.D.2d 839, 840;  see Matter of Adam H., 195 A.D.2d 1074), and thus has a sound and substantial basis in the record (see Matter of Brocher v. Brocher, 213 A.D.2d 544, lv denied 86 N.Y.2d 701).   Furthermore, in light of the evidence in the record that the father harmed the children by disobeying court orders and using religion to alienate them from the mother, we conclude that the court did not abuse its discretion by prohibiting the father from discussing religion with the children.   Although “the court would be intruding on ․ [the] First Amendment rights [of the father] were it to enjoin [him] from discussing religion with his child[ren] absent a showing that the child [ren] will thereby be harmed,” here, as noted, there was such a showing (Matter of Bentley v. Bentley, 86 A.D.2d 926, 927;  cf.  Matter of Booth v. Booth, 8 AD3d 1104, 1106, lv denied 3 NY3d 607).

Finally, the father failed to preserve for our review his contention that the court erred in admitting a report containing recommendations that were based on inadmissable hearsay inasmuch as he did not object to the admission of that report on that specific ground (see Balsz v. A & T Bus Co., 252 A.D.2d 458).   In any event, any error in the admission of that report is harmless because the record otherwise contains ample admissible evidence to support the court's determination (see Lubit v. Lubit, 65 AD3d 954, 955-956, lv denied 13 NY3d 716;  Murtari v. Murtari, 249 A.D.2d 960, 961, appeal dismissed 92 N.Y.2d 919).

Patricia L. Morgan

Clerk of the Court