Opinion
February 8, 2001.
Appeal from an order of the Family Court of Delaware County (Estes, J.), entered March 3, 2000, which denied petitioner's application, in a proceeding pursuant to Family Court Act article 6, to modify a prior order of custody.
Gregory L. Kottmeier, Delhi, for appellant.
James M. Hartmann, Law Guardian, Delhi, for Lewis Ostrander and another.
Before: Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ.
MEMORANDUM AND ORDER
On this appeal from the denial of petitioner's application to modify a prior order granting custody of the parties' children to respondent, petitioner's only claim is that Family Court erred in curtailing her counsel's direct examination of respondent. During the course of that direct examination, petitioner's counsel asked several leading questions regarding the children's possession of a gun and Family Court sustained the objections of respondent's counsel. While an adverse party who is called as a witness may be viewed as a hostile witness and direct examination may assume the nature of cross-examination by the use of leading questions (see, Becker v. Koch, 104 N.Y. 394, 400-401), whether to permit such questions over objection is a matter which rests in the discretion of the trial court (see, Jordan v. Parrinello, 144 A.D.2d 540, 541; Prince, Richardson on Evidence, § 6-228, at 374 [Farrell 11th ed]).
The record discloses that respondent was neither reluctant nor evasive in answering questions posed during direct examination, including several questions regarding the children and guns. When the objections to the leading questions were sustained, petitioner's counsel made no effort to elicit the information through questions which were not leading and petitioner does not claim that such questions were not feasible or that their use would have been frustrated by respondent's hostility as an adverse party. In these circumstances, and considering the lack of evidence to support petitioner's application for a change in custody, we see no reversible error in Family Court's ruling.
ORDERED that the order is affirmed, without costs.