De Mel v. Aldana

• Decision Date: 20 March 1990
• Citation: 159 A.D.2d 349,552 N.Y.S.2d 627
• Parties: In re Proceeding for the Custody and/or Visitation of Minors Under Article 6 of the Family Court Act. Ernest DE MEL, Petitioner-Appellant, v. Librada ALDANA, Respondent-Respondent. The New York Society For the Prevention of Cruelty to Children, etc.
• Court: New York Supreme Court — Appellate Division

Page 627

552 N.Y.S.2d 627

159 A.D.2d 349

In re Proceeding for the Custody and/or Visitation of Minors Under Article 6 of the Family Court Act. Ernest DE MEL, Petitioner-Appellant, v. Librada ALDANA, Respondent-Respondent. The New York Society For the Prevention of Cruelty to Children, etc.

Supreme Court, Appellate Division, First Department.

March 20, 1990.

G.E. Allen, for petitioner-appellant.

H.M. Simms, for respondent-respondent.

H.W. Yagerman, New York City, for New York Soc. for the Prevention of Cruelty to Children, etc.

Before CARRO, J.P., and KASSAL, ELLERIN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order of Family Court, New York County (Judith Sheindlin, J.), entered on or about January 6, 1988, awarding custody of the child, Herbey De Mel, to the respondent-mother and visitation to the petitioner-father, is unanimously affirmed, without costs.

The standard to be applied in child custody proceedings is the best interests of the child when all the applicable factors are considered. Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765. When the mental health of one of the parents is in issue, the court will direct independent psychiatric testing. Giraldo v. Giraldo, 85 A.D.2d 164, 447 N.Y.S.2d 466. The question of custody is within the discretion of the hearing court and will not lightly be overturned because the hearing court has had the opportunity to observe all the witnesses and weigh all the evidence. Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260.

It was not an abuse of discretion for the court to credit the wife's expert, Dr. Koch, who has known her for eight years, instead of the psychiatrist from the Family Court Mental Health Services Clinic. Nor is there merit to the father's argument, that Dr. Koch's evaluation should be discounted because he did not do a comparative evaluation of both parents, when the father refused to submit himself to such an evaluation. See Alan G. v. Joan G., 104 A.D.2d 147, 482 N.Y.S.2d 272.