        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

350
CAF 12-00335
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF BRADLEY OLUFSEN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TRICIA PLUMMER, RESPONDENT-APPELLANT.


DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT-APPELLANT.

BOUVIER PARTNERSHIP, LLP, EAST AURORA (ROGER T. DAVISON OF COUNSEL),
FOR PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR MACI
L.O.


     Appeal from an order of the Family Court, Erie County (Paul G.
Buchanan, J.), entered January 24, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, awarded
petitioner custody of the subject child.

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

     Memorandum: Respondent mother appeals from an order that, inter
alia, awarded sole custody of the parties’ child to petitioner father
and “liberal and frequent” visitation to her. Contrary to the
mother’s contention, we conclude that Family Court’s best interests
determination is supported by a sound and substantial basis in the
record and that the court did not fail to consider the appropriate
factors in awarding sole custody to the father (see Eschbach v
Eschbach, 56 NY2d 167, 171; Matter of Tarrant v Ostrowski, 96 AD3d
1580, 1582, lv denied 20 NY3d 855; Matter of Booth v Booth, 8 AD3d
1104, 1104-1105, lv denied 3 NY3d 607; see generally Fox v Fox, 177
AD2d 209, 210). We note that “[i]t 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
Orzech v Nikiel, 91 AD3d 1305, 1306 [internal quotation marks
omitted]; see Matter of Marino v Marino, 90 AD3d 1694, 1695). Under
such circumstances, we conclude that the child’s emotional development
is better served by sole custody to the father (see generally Fox, 177
AD2d at 210). Here, we note that there was evidence in the record
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                                                         CAF 12-00335

that the mother sought to interfere with the relationship between the
father and the child by pressuring the child into making groundless
allegations of sexual abuse against the father and by repeating those
groundless allegations.

     We reject the mother’s contention that the court erred in relying
heavily on the investigative report and opinion testimony of a
licensed clinical psychologist. The psychologist met with the parties
individually, visited their homes when the child was present,
administered psychological tests to the parties and the child, and
consulted with caseworkers with the Erie County Department of Social
Services. At the hearing, the psychologist testified that the mother
exhibited “a lack of emotional [attunement]” with the child and that
they had an “unhealthy dynamic.” He further testified that the mother
could not effectively communicate with the father with respect to the
child and that joint custody would be inappropriate. Although we
agree with the mother that the opinion of a court-ordered psychologist
is only one factor to be considered in a custody proceeding (see
generally Matter of Alexandra H. v Raymond B.H., 37 AD3d 1125, 1126),
we conclude that there was additional evidence in the record
supporting the court’s determination that the father should have
custody of the child. Moreover, we see no basis for disturbing the
court’s “first-hand assessment of the credibility of the witnesses”
(Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449), including
the psychologist.

     Finally, the mother’s further contention that the court erred in
failing to hold a Lincoln hearing is not preserved for our review
inasmuch as the mother did not request that the court conduct such a
hearing (see Matter of Thillman v Mayer, 85 AD3d 1624, 1625; see
generally Matter of Lincoln v Lincoln, 24 NY2d 270, 272-274). “In any
event, based on the child’s young age, we perceive no abuse of
discretion in the court’s failure to conduct a Lincoln hearing”
(Thillman, 85 AD3d at 1625; see Matter of Graves v Stockigt, 79 AD3d
1170, 1171).




Entered:   April 26, 2013                       Frances E. Cafarell
                                                Clerk of the Court
