Smith v. Smith

Jul 3, 1997
Versions:241 A.D.2d 980
667 N.Y.S.2d 141
1997 N.Y. App. Div. LEXIS 7968

Order unanimously affirmed without costs. Memorandum: 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 AD2d 1079). 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 AD2d 906; Wurm v Wurm, 87 AD2d 590, 591, appeal dismissed 56 NY2d 886)” (Perez v Perez [appeal No. 2], 239 AD2d 868, 869).

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 AD2d 745, 746; Matter of Department of Social Servs. [Jennifer M.], 148 Misc 2d 584; cf., Matter of Brooke D., 193 AD2d 1100, lv dismissed 82 NY2d 734; Matter of H. Children, 160 Misc 2d 298). Respondent’s remaining contention is not preserved for our review (see, Zankowski v Johns-Mansville Corp., 204 AD2d 1023). (Appeal from Order of Herkimer County Family Court, LaRaia, J.—Custody.) Present—Green, J. P., Lawton, Doerr, Balio and Boehm, JJ.