IN RE: MARIA ORAVEC (2011)

MEMORANDUM AND ORDER

DEBORAH J. SCINTA, ATTORNEY FOR THE CHILDREN, KENMORE, FOR DYLAN O. AND OLIVIA O.

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

Memorandum:  Petitioner-respondent mother contends on appeal that Family Court should have granted her petition alleging that respondent-petitioner father violated a prior order of custody with respect to the parties' children.   The mother further contends that the court should have granted her petition seeking to modify the prior order by, inter alia, awarding her sole custody of the children and erred in granting the father's petition seeking to modify the prior order by, inter alia, awarding him sole custody of the children.   We affirm.

The court properly dismissed the violation petition inasmuch as the mother failed to establish that the father willfully violated a clear mandate of the prior order or that his conduct “ ‘defeated, impaired, impeded, or prejudiced’ “ any right or remedy to which she was entitled (Matter of Petkovsek v. Snyder [appeal No. 2], 251 A.D.2d 1085;  see Matter of Maurice H. v. Charity C., 49 AD3d 1248).   Contrary to the mother's contention concerning the custody determination, we conclude that the court properly considered, as one factor in its determination, “the support that [the father's parents] give [ ] to him and the children, which contributes further stability and emotional comfort to the children's lives” (Matter of Flynn–Stallmer v. Stallmer, 167 A.D.2d 575, 577, lv dismissed 77 N.Y.2d 939).   The mother failed to preserve for our review her further contention that the court erred in interjecting itself into the hearing by questioning her concerning matters that had not been addressed on direct or cross-examination (see generally People v. Charleston, 56 N.Y.2d 886, 887–888;  Matter of Aron B., 46 AD3d 1431;  Chocolas Assoc.   Ltd. Partnership v Handelsman, 262 A.D.2d 133).   The mother also failed to preserve for our review her contention that the court erred in admitting in evidence the custody evaluation report on the ground that it contained hearsay (see Matter of Timosa v. Chase, 21 AD3d 1115).

Patricia L. Morgan

Clerk of the Court