Alice A v. Joshua B
| Decision Date | 17 October 1996 |
| Citation | 648 N.Y.S.2d 729,232 A.D.2d 777 |
| Parties | In the Matter of ALICE "A", Appellant, v. JOSHUA "B", Respondent. |
| Court | New York Supreme Court — Appellate Division |
Barbara A. Coppola, Albany, for appellant.
Van Norden & Paul (Drew A. Lochte, of counsel), Schenectady, for respondent.
Joseph A. Nalli, Law Guardian, Fort Plain, for Anthony "A".
Before CARDONA, P.J., and MERCURE, CASEY, SPAIN and CARPINELLO, JJ.
Appeal from an order of the Family Court of Fulton County (Jung, J.), entered May 1, 1995, which dismissed petitioner's application in a proceeding pursuant to Family Court Act article 6, for modification of a prior custody order.
The parties' child, Anthony, was born out of wedlock in August 1991. From the date of his birth up until his first birthday, Anthony was cared for by petitioner, his mother, and his contact with respondent, who denied paternity, was infrequent. Paternity was established by a blood test. Thereafter, on October 28, 1992, respondent filed a petition seeking joint custody of Anthony. Joint custody was awarded by order dated January 22, 1993, with primary physical custody given to petitioner. By order dated December 15, 1993, the joint custody arrangement was continued but primary physical custody was shifted to respondent. The parties thereafter modified their visitation schedule, but joint custody continued and primary physical custody remained with respondent.
On or about November 26, 1994, respondent brought Anthony to petitioner's house in accordance with the agreed-upon visitation order. Respondent told petitioner that Anthony had received rug burns on his back from sliding down the stairs while playing with another child. Petitioner testified that when she examined the child, she noticed a bruise on his back and fingerprint-shaped bruising on his buttocks. Petitioner testified that when she asked Anthony about the bruises, he told her that respondent had spanked him hard after Anthony called him a jerk. Petitioner brought Anthony to the hospital for examination, and hospital records indicate that Anthony told a nurse that "Josh" had hit him. Hospital personnel called Child Protective Services, and caseworker James Brouse was dispatched to the scene. When Brouse asked Anthony about his injuries, he indicated that respondent's wife had struck him. Several months later Anthony told Brouse that respondent had spanked him for wetting the bed and for calling respondent a jerk.
Anthony was placed with petitioner until an order of protection could be secured against respondent and his wife. Once the order of protection was obtained, Anthony was returned to respondent's care. On November 30, 1994, petitioner filed a petition seeking full custody of Anthony with supervised visitation to respondent. The Fulton County Department of Social Services commenced neglect proceedings against respondent and his wife. The neglect petition and the custody petition were consolidated. The neglect charge against respondent's wife was adjourned in contemplation of dismissal, but the Law Guardian opposed a similar disposition with regard to the neglect charge against respondent. Respondent then consented to a finding of neglect without admission, with specified conditions.
A fact-finding hearing on the custody petition followed. In his testimony, respondent stated that although he had initially told Brouse that he never spanked Anthony, he had in fact spanked Anthony in the past for wetting the bed. Respondent also testified that he periodically questions Anthony about the cause of his injuries, and that Anthony has stated on different occasions that the injuries were caused by petitioner, respondent or the boyfriend of petitioner's sister. At the conclusion of the hearing, Family Court dismissed the petition for sole custody on the ground that petitioner had failed to prove a change in circumstances. Family Court noted that the petition was based entirely upon the allegation that respondent had struck Anthony while in his care, causing bruising to Anthony's back and buttocks. Family Court stated, however, that in the absence of testimony or evidence to corroborate Anthony's version of the facts, the court was unable to make a determination as to the cause of his injuries. Petitioner appeals.
Petitioner's sole argument on this appeal is that Family Court gave undue consideration to whether the neglect charge against respondent had been proven and failed to consider the totality of the circumstances in determining Anthony's best interest. Although not...
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