VISCUSO, ANGELO M. v. VISCUSO, SUSAN M.VISCUSO, ANGELO M. v. VISCUSO, SUSAN M.
In the Matter of ANGELO M. VISCUSO, Respondent, v SUSAN M. VISCUSO, Appellant. (Appeal No. 1.) [12 NYS3d 684]—Appeal from an order
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: These consolidated appeals arise from a custody proceeding pursuant to
In appeal No. 1, the mother contends that the Attorney for the Child (AFC) violated her ethical duty to determine the subject child‘s position and advocate zealously in support of the child‘s wishes, because the AFC advocated for a result that was contrary to the child‘s expressed wishes in the absence of any justification for doing so. We reject that contention. The Rules of the Chief Judge provide that an AFC “must zealously advocate the child‘s position” and that, “[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] for the child believes that what the child wants is not in the child‘s best interests” (
The mother further contends that Family Court erred in denying her motion to replace the AFC. The court denied the motion in a prior order from which the mother did not appeal, and we therefore do not consider the propriety of the court‘s denial of the motion (see generally Hoffman v Hoffman, 31 AD3d 1125, 1126 [2006]; Matter of St. Lawrence County Dept. of Social Servs. v Pratt, 24 AD3d 1050, 1050 [2005], lv denied 6 NY3d 713 [2006]). In any event, even assuming, arguendo, that the order on appeal brings up for review the prior order denying the mother‘s motion to replace the AFC (see
Contrary to the mother‘s further contention, the court‘s determination to award custody of the subject child to the father is supported by a sound and substantial basis in the record. It is well settled that a “‘concerted effort by one parent to interfere with the other parent‘s contact with the child is so inimical to the best interests of the child . . . as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent‘” (Matter of Amanda B. v Anthony B., 13 AD3d 1126, 1127 [2004]; see Matter of Avdic v Avdic, 125 AD3d 1534, 1536 [2015]; Marino, 90 AD3d at 1695). Here, there is a sound and substantial basis in the record for the court‘s conclusion that the mother interfered with the father‘s relationship with the child by, inter alia, blatantly and repeatedly violating the court‘s directive not to discuss the litigation with the child, attempting to instill in the child a fear of the father, and encouraging the child to medicate herself before going to visit the father. We reject the mother‘s contention that the father‘s prior domestic violence toward the mother requires
We reject the mother‘s contention that the court erred in denying her pretrial request to release certain materials, i.e., the report of a court-appointed psychological expert and the expert‘s notes. It is well settled that “the potential for abuse in matrimonial and custody cases is great, and the court has broad discretionary power to limit disclosure and grant protective orders” (Matter of Worysz v Ratel, 101 AD3d 893, 894 [2012]; see generally Wegman v Wegman, 37 NY2d 940, 941 [1975]). We conclude that the court did not abuse its discretion in denying the mother‘s request, particularly in light of the mother‘s repeated violations of the court‘s orders prohibiting her from disclosing confidential materials. Moreover, the court denied the request without prejudice to renewal, and thus the mother could have reapplied for release of the materials upon submitting evidence demonstrating that she had actually retained an expert who required access to the report prior to trial. In any event, any error in declining to release the materials prior to trial is harmless. The record establishes that the mother introduced the materials in evidence several months before the trial ended, and she therefore had more than ample access to the materials in time to use them at trial. Furthermore, she had the use of the materials for cross-examination purposes, and thus there was no denial of due process (see Matter of Patrick H., 229 AD2d 682, 683 [1996]).
The mother‘s final contention in appeal No. 1 is that the court‘s temporary order of primary physical custody was improperly entered without a full hearing in the midst of the trial. That contention is moot based on the court‘s issuance of the final order of custody (see Matter of Dench-Layton v Dench-Layton, 123 AD3d 1350, 1351 [2014]; see also Matter of Rodriguez v Feldman, 126 AD3d 1557, 1558 [2015]).
In appeal No. 2, the mother contends that the court erred in directing her to pay counsel fees to the father‘s attorney. Contrary to the mother‘s contention, a party seeking an award of attorney‘s fees need not demonstrate that he or she is unable to pay those fees (see Griffin v Griffin, 104 AD3d 1270, 1272 [2013]; see generally DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). Furthermore, upon our review of the record, including the lengthy delays engendered by, inter alia, the mother‘s repeated replacement of her attorneys and her lengthy pro se litigation, much of which was unwarranted under the circumstances, we conclude that the court‘s award of counsel fees was a proper exercise of discretion that is supported by “the equities of the case and the financial circumstances of the parties” (Popelaski v Popelaski, 22 AD3d 735, 738 [2005]). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.
In the Matter of ANGELO M. VISCUSO, Respondent, v SUSAN M. VISCUSO, Appellant. (Appeal No. 2.) [10 NYS3d 483]—Appeal from an order of the Family Court, Erie County (Paul G. Buchanan, J.), entered December 18, 2013 in a proceeding pursuant to
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Same memorandum as in Matter of Viscuso v Viscuso ([appeal No. 1] 129 AD3d 1679 [2015]). Present—Smith, J.P., Peradotto, Carni, Valentino and Whalen, JJ.