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FAMILY COURT’S DETERMINATION FATHER DID NOT SEXUALLY ABUSE HIS CHILD WAS NOT SUPPORTED BY THE RECORD; THE CHILD’S HEARSAY STATEMENTS WERE CORROBORATED, AND FAMILY COURT’S DECISION TO CREDIT THE TESTIMONY OF FATHER’S EXPERT OVER PETITIONER’S EXPERT WAS NOT SUPPORTED BY THE RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the allegations father sexually abused his child, Zamir, were proved by a preponderance of the evidence. The hearsay allegations of the child were corroborated by another child and case workers. Father’s expert, relied upon by Family Court, offered speculative testimony about alleged flaws in the approach taken by petitioner’s expert, but acknowledged he had not reviewed the petitioner’s expert’s testimony:

… [W]e find that the petitioner established by a preponderance of the evidence that the father neglected Zamir by sexually abusing him. The Family Court’s finding that there was no evidence presented of “age-inappropriate sexual knowledge” by Zamir is not supported by the record, since the then five-year-old child made an “up down” motion with his hands during the interviews with the petitioner’s expert to demonstrate how he was made to touch the father’s penis … . Further, the court’s finding that there was no evidence presented that the child displayed any “psychological or behavioral characteristics” indicative of having been sexually abused is not supported by the record. The petitioner’s expert testified that Zamir was “engaging” when talking about anything other than the sexual abuse, but used “less words per sentence,” without maintaining eye contact, and became “squirmy” when discussing the sexual abuse, and that “[i]t was very easy to see that he was not comfortable discussing th[at] topic.” In addition, the court’s speculation that Zamir fabricated the claims of sexual abuse because he was angry at the father for other matters is not supported by the record. Matter of Zamir F. (Ricardo B.), 2021 NY Slip Op 02391, Second Dept 4-21-21

 

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