In the Matter of Lionel T. Vieira v. Huff

• Decision Date: 29 April 2011
• Citation: 922 N.Y.S.2d 684,2011 N.Y. Slip Op. 03393,83 A.D.3d 1520
• Parties: In the Matter of Lionel T. VIEIRA, Petitioner–Respondent,v.Diane P. HUFF, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1520

922 N.Y.S.2d 684

2011 N.Y. Slip Op. 03393

In the Matter of Lionel T. VIEIRA, Petitioner–Respondent,

v.Diane P. HUFF, Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 29, 2011.

Shirley A. Gorman, Brockport, for Respondent–Appellant.Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Petitioner–Respondent.Robert L. Gosper, Attorney for the Child, Canandaigua, for Benjamin H.PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.MEMORANDUM:

Respondent mother appeals from an order that modified an order pursuant to which the parties had joint custody of the child, with primary physical placement with the mother. By the order on appeal, Family Court granted sole legal and physical custody of the parties' child to petitioner father, directed that the mother's visitation with the child be supervised, and further directed the mother to obtain mental health counseling before filing an application to modify her visitation. Based on the record before us, we conclude that the court properly determined that the father established a change in circumstances reflecting “ ‘a real need for change to ensure the best interest[s] of the child’ ” ( Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1417, 770 N.Y.S.2d 248). We further conclude that the award of sole legal and physical custody to the father is in the best interests of the child, upon considering the appropriate factors to warrant that award ( see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Fox v. Fox, 177 A.D.2d 209, 582 N.Y.S.2d 863). We note in particular that the mental health expert who evaluated the mother testified that she suffered from a delusional disorder and was not likely to benefit from therapy because she was not able to recognize alternative possibilities and explanations for her delusions, nor was she able to form a trusting bond with her therapist. Although we agree with the mother that the court erred in awarding temporary custody of the parties' child to the father during the course of the evidentiary hearing, that error is of no moment under the circumstances of this case inasmuch as the record of the hearing upon its completion fully supports the court's determination ( see Matter of Darryl B.W. v. Sharon M.W., 49 A.D.3d 1246, 1247, 854 N.Y.S.2d 260).

We further reject the mother's contention that the court erred in directing that her visitation be supervised. Supervised visitation is a matter left to the sound...