Summary
The Appellate Division, Third Department, affirmed a Family Court order awarding a cousin sole legal and physical custody of a child and limiting the father's parenting time. The court held that certified police records were admissible as business records, rejected or found unpreserved the father's other evidentiary and procedural claims, and concluded that the parenting-time limitation had a sound and substantial basis in the record. The decision emphasized the child's exposure to domestic violence and the stability provided by the cousin's care.
Topics
Practice areas
Questions Presented
- Whether certified police records produced pursuant to a judicial subpoena were admissible without testimony from a records custodian or other police department employee.
- Whether statements in the police records, including officers' observations, the father's statements, and statements attributed to the mother, were admissible or their admission was harmless.
- Whether Family Court denied the father a fair hearing by refusing to entertain a new custody petition immediately before the fact-finding hearing.
- Whether the father's challenge to uncorroborated hearsay concerning inappropriate touching of the child was preserved for appellate review.
- Whether Family Court improperly limited the father's recross-examination of the mother.
- Whether the limitation of the father's parenting time to four hours biweekly lacked a sound and substantial basis in the record.
Holdings
- Police records produced in response to a judicial subpoena and accompanied by a certification satisfying CPLR 3122-a are admissible as certified business records under CPLR 4518(a) without testimony from a records custodian or other police department employee.
- Police incident-report entries reflecting responding officers' own observations and conduct, and the father's recorded statements to police, were admissible; any error in admitting statements attributable to the mother was harmless.
- Family Court properly exercised its authority to manage the proceedings by refusing to entertain a new custody petition immediately before the fact-finding hearing.
- The father's challenge to the admission of uncorroborated hearsay that he touched the child inappropriately was unpreserved because he failed to object during the fact-finding hearing.
- Family Court did not improperly limit the father's recross-examination of the mother because he had a full and fair opportunity to cross-examine her and identified no new matter on redirect warranting further questioning.
- The four-hour biweekly parenting-time limitation was properly upheld because it was guided by the child's best interests and supported by a sound and substantial basis in the record.
Key quotations
“Records produced in response to a judicial subpoena are admissible when accompanied by a certification pursuant to CPLR 3122-a stating that the records were made in the regular course of business, at or near the time of the events recorded, and that it was the regular course of business to make such records” (*1)
“Trial courts "must have broad discretion in controlling their calendars and the progress of a trial"” (*3)
“Family Court's determination of the father's parenting time is guided by the child's best interests and is entitled to deference where, as here, it is supported by a sound and substantial basis in the record” (*3)
Factual background
The child, born in 2018, was exposed to a lengthy pattern of violent and threatening conduct by the father toward the mother. In March 2023, the father attempted to harm himself in the family residence while the child was present, struck the mother after she intervened, and was later hospitalized for psychiatric evaluation. With the mother's consent, the child's cousin assumed primary caregiving responsibilities while the mother sought stable housing. The child reportedly experienced emotional dysregulation associated with contact with the father but thrived in the cousin's stable care.
Procedural history
The cousin commenced a third-party custody proceeding in May 2023, alleging extraordinary circumstances. After a fact-finding hearing, Family Court of Madison County found extraordinary circumstances, awarded the cousin sole legal and physical custody, and limited the father's parenting time. The father appealed, challenging evidentiary rulings, the handling of his proposed custody petition, the limitation of recross-examination, and the parenting-time determination; the Appellate Division affirmed.