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In re Brown

Supreme Court of New York, Fourth Department

September 27, 2013

IN THE MATTER OF CHRISTY M. BROWN, PETITIONER-RESPONDENT,
v.
RAYMOND WOLFGRAM, RESPONDENT-APPELLANT

Appeal from an order of the Family Court, Ontario County (William F. Kocher, J.), entered May 17, 2012 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded petitioner sole custody of the parties' three children.

SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-APPELLANT.

PIRRELLO, MISSAL, PERSONTE & FEDER, ROCHESTER (MICHAEL J. PERSONTE OF COUNSEL), FOR PETITIONER-RESPONDENT.

WENDY S. SISSON, ATTORNEY FOR THE CHILDREN, GENESEO.

PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that, inter alia, awarded petitioner mother sole custody of the parties' three children. The father contends that Family Court erred in awarding sole custody to the mother while giving him only alternate weekend visitation. We reject that contention, and conclude that the award of sole custody to the mother has a sound and substantial basis in the record (see Matter of McLeod v McLeod, 59 A.D.3d 1011, 1011). The father's contention that the Attorney for the Children failed to advocate for the childrens' position regarding custody and visitation and thus failed to provide them with effective representation is not preserved for our review (see Matter of Alyshia M.R., 53 A.D.3d 1060, 1061, lv denied 11 N.Y.3d 707) and, in any event, is without merit (see generally Matter of Venus v Brennan, 103 A.D.3d 1115, 1116-1117). Contrary to the father's further contention, the court did not abuse its discretion in allowing testimony at the hearing concerning events that predated the prior custody order. It is well settled that, in determining the best interests of the children, the court is vested with broad discretion with respect to the scope of proof to be adduced (see Matter of Stukes v Ryan, 289 A.D.2d 623, 624). Finally, also contrary to the father's contention, the delay between the conclusion of the hearing and the issuance of the court's decision, by itself, does not require reversal (see Matter of Brady v Brady, 216 A.D.2d 660, 661; Matter of Hartman v Hartman, 214 A.D.2d 780, 782).


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