Summary
The New York Appellate Division, Third Department affirmed an order modifying the mother's visitation with her children to require supervision. The court held that objections to the admission of a Family Court Act § 1034 investigative report were unpreserved and, in any event, harmless, and that the Family Court's adverse inference concerning a missing witness was erroneous but harmless. The court concluded that a change in circumstances and the children's best interests supported supervised visitation.
Court
Appellate Division of the Supreme Court of the State of New York, Third Department
Jurisdiction
New York
Decision date
March 2, 2023
Docket number
532809
Disposition
affirmed
Questions Presented
- Whether the mother's hearsay challenge to the admission of a Family Court Act § 1034 investigative report was preserved for appellate review.
- If preserved, whether admission of the investigative report constituted reversible error.
- Whether Family Court improperly drew an adverse inference against the mother for failing to call her boyfriend as a witness.
- If the adverse inference was improper, whether the error was harmless.
- Whether the record established a change in circumstances and a sound and substantial basis for modifying the mother's visitation to supervised visitation in the children's best interests.
Holdings
- The mother's hearsay objection to the investigative report was unpreserved because the objections below challenged relevance but did not raise hearsay.
- Even assuming error in admitting the report, its admission was harmless because the report merely restated evidence already introduced, particularly the mother's testimony.
- Family Court improperly drew an adverse inference because no party requested one and the mother was not given an opportunity to oppose the inference or attempt to procure the boyfriend's testimony.
- The improper adverse inference was harmless because sufficient other evidence supported supervised visitation.
- Family Court properly found a change in circumstances and determined that supervised visitation served the children's best interests; its order had a sound and substantial basis in the record.
Court Document
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