Albert S. v. Pamela G.M.

Feb 1, 2002
Versions:291 A.D.2d 931
737 N.Y.S.2d 196
2002 N.Y. App. Div. LEXIS 1002

—Appeal from an order of Family Court, Onondaga County (Klim, J.), entered December 20, 2000, which transferred primary physical custody from respondent to petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent waived the right to a plenary hearing on the custody petition and thus Family Court did not err in failing to conduct a hearing (see, Wagner v Wagner, 222 AD2d 1039, 1040; Bleck v Brown, 217 AD2d 766, 767; Matter of Thomson v Thomson, 102 AD2d 955, 956; cf., Matter of Goldman v Goldman, 201 AD2d 860, 861-862; Matter of Oliver S. v Chemung County Dept. of Social Servs., 162 AD2d 820, 821-822; Kuleszo v Kuleszo, 59 AD2d 1059, 1060, lv denied 43 NY2d 647). The court’s determination to transfer primary physical custody from respondent to petitioner is entitled to great weight and will not be set aside where, as here, it has a sound and substantial basis in the record (see, Matter of Oliver v Oliver, 284 AD2d 934, 935; Matter of Jones v Houck, 280 AD2d 969; Matter of Ross v Trento, 275 AD2d 972). The record establishes respondent’s excessive use of corporal punishment (cf., Matter of Kivler v Olczak, 262 AD2d 938, 939), including instances of slamming the parties’ 13-year-old daughter against a door, striking her in such a way as to leave marks on her arms, and pulling the hair of the parties’ 10-year-old son and hitting him with objects such as a wooden spoon and a hairbrush. Moreover, the court gave proper weight to the children’s preference for living with petitioner (see, Matter of Taylor v Rivera, 261 AD2d 947, 948, citing Fox v Fox, 177 AD2d 209, 210; Perez v Perez, 239 AD2d 868, 869). Present — Hayes, J.P., Hurlbutt, Scudder, Kehoe and Gorski, JJ.