Smith v. Smith
| Decision Date | 03 July 1997 |
| Parties | , 1997 N.Y. Slip Op. 6617 Matter of Ronald J. SMITH, Respondent, v. Stacey K. SMITH, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before GREEN, J.P., and LAWTON, DOERR, BALIO and BOEHM, JJ.
In this child custody proceeding, the determination of Family Court, "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 Hill v. Rogers, 213 A.D.2d 1079, 625 N.Y.S.2d 991). In our view, the record supports the court's determination that "the best interests of the children warrant their residence with different parents (see, Matter of Bilodeau v. Bilodeau, 161 A.D.2d 906, 557 N.Y.S.2d 471; Wurm v. Wurm, 87 A.D.2d 590, 591, 447 N.Y.S.2d 758, appeal dismissed 56 N.Y.2d 886, 453 N.Y.S.2d 429, 438 N.E.2d 1145)" (Perez v. Perez [appeal No. 2], 239 A.D.2d 868, 869, 659 N.Y.S.2d 642).
The court did not improvidently exercise its discretion in denying respondent's motion to disqualify the Law Guardian. The record does not support respondent's contention that the children had conflicting interests precluding their joint representation by the Law Guardian (see, Matter of Zirkind v. Zirkind, 218 A.D.2d 745, 746, 630 N.Y.S.2d 570; Matter of Department of Social Servs. [Jennifer M.], 148 Misc.2d 584, 561 N.Y.S.2d 347; cf., Matter of Brooke D., 193 A.D.2d 1100, 598 N.Y.S.2d 633, lv. dismissed 82 N.Y.2d 734, 602 N.Y.S.2d 794, 622 N.E.2d 294; Matter of H. Children [Hugh H.], 160 Misc.2d 298, 608 N.Y.S.2d 784). Respondent's remaining contention is not preserved for our review (see, Zankowski v. Johns-Manville Corp., 204 A.D.2d 1023, 614 N.Y.S.2d 343).
Order unanimously affirmed without costs.
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