IN RE: Mary Margaret BALLARD (2019)

MEMORANDUM AND ORDER

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

Memorandum:  In this proceeding pursuant to Family Court Act article 6, petitioner-respondent mother appeals from an order that, inter alia, awarded respondent-petitioner father sole legal and primary physical custody of the parties' children and directed that the mother's parenting time be supervised “at such times and locations as the Petitioner Mother and Respondent Father mutually agree.”  We reject the mother's contention that Family Court erred in its custody and visitation determinations.

It is well settled that “a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” (Matter of Bryan K.B. v. Destiny S.B. [appeal No. 1], 43 A.D.3d 1448, 1449, 844 N.Y.S.2d 535 [4th Dept. 2007] [internal quotation marks omitted];  see Graves v. Huff [appeal No. 2], 169 A.D.3d 1476, 1476, 93 N.Y.S.3d 764 [4th Dept. 2019] ).  Here, the record establishes that the mother made multiple unfounded allegations of sexual abuse against the father, among other people, and that she subjected the parties' oldest child to repeated unnecessary physical examinations by numerous individuals (see Matter of Howden v. Keeler, 85 A.D.3d 1561, 1562, 924 N.Y.S.2d 880 [4th Dept. 2011] ).  We thus conclude that the court's custody and visitation determinations, including the requirement that the mother's visitation be supervised until she completes a counseling program, have a sound and substantial basis in the record and should not be disturbed (see id.;  see also Matter of Guillermo v. Agramonte, 137 A.D.3d 1767, 1769, 29 N.Y.S.3d 720 [4th Dept. 2016] ).

Contrary to the mother's contention, the court properly determined that joint legal and physical custody was not appropriate inasmuch as “the parties have an acrimonious relationship and are unable to communicate with each other in a civil manner” (Benedict v. Benedict, 169 A.D.3d 1522, 1523, 93 N.Y.S.3d 503 [4th Dept. 2019] [internal quotation marks omitted];  see Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016] ).  We also reject the mother's contention that she was denied effective assistance of counsel when her attorney failed to request that the mother be granted sole legal and primary physical custody of the children.  The mother has failed to “demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings” (Matter of Brown v. Gandy, 125 A.D.3d 1389, 1390, 3 N.Y.S.3d 486 [4th Dept. 2015] [internal quotation marks omitted];  see Matter of VanSkiver v. Clancy, 128 A.D.3d 1408, 1408, 7 N.Y.S.3d 805 [4th Dept. 2015] ).  In our view, the mother's attorney “was both competent and zealous” (Matter of Sullivan v. Sullivan, 90 A.D.3d 1172, 1175, 933 N.Y.S.2d 777 [3d Dept. 2011] ), as evidenced by the fact that he called relevant witnesses, vigorously cross-examined other witnesses, and made appropriate objections (see Matter of Nagi T. v. Magdia T., 48 A.D.3d 1061, 1062, 850 N.Y.S.2d 732 [4th Dept. 2008];  see also Matter of Donald G. v. Hope H., 160 A.D.3d 1061, 1065, 74 N.Y.S.3d 135 [3d Dept. 2018] ).

The mother failed to preserve for our review her contention that she was denied a fair hearing due to the court's excessive examination of her (see Matter of Wright v. Perry, 169 A.D.3d 910, 912, 95 N.Y.S.3d 108 [2d Dept. 2019], lv denied 33 N.Y.3d 906, 2019 WL 2376035 [2019] ).  In any event, that contention lacks merit (see Matter of Emily A. [Gina A.], 129 A.D.3d 1473, 1474, 11 N.Y.S.3d 751 [4th Dept. 2015] ).

Finally, we reject the mother's contention that the court improperly delegated its authority to determine visitation when it failed to set forth a visitation schedule in the order.  “Although ‘[a] court cannot delegate its authority to determine visitation to either a parent or a child’ ․, it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances” (Matter of Kelley v. Fifield, 159 A.D.3d 1612, 1613, 72 N.Y.S.3d 754 [4th Dept. 2018] ).  Although the parties have an acrimonious relationship, the evidence at the hearing established the father's commitment to ensuring contact between the children and their maternal relatives, including the mother (see Matter of Samuel v. Sowers, 162 A.D.3d 674, 675, 78 N.Y.S.3d 231 [2d Dept. 2018] ).  Inasmuch as the mother's visitation will be supervised, any concerns about future false allegations has been alleviated.  We thus conclude that the arrangement was not “untenable under the circumstances” (Kelley, 159 A.D.3d at 1613, 72 N.Y.S.3d 754).  Should the mother find that she is unable to obtain visitation pursuant to the order, she “may file a petition seeking to enforce or modify the order” (Matter of Pierce v. Pierce, 151 A.D.3d 1610, 1611, 56 N.Y.S.3d 703 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4654065 [2017] ).