| Matter of Rivera v Tomaino |
| 2007 NY Slip Op 10424 [46 AD3d 1249] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Efren U. Rivera, Appellant, v Anna Tomaino,Formerly Known as Anna Ruffino-Rivera, Respondent. (And Six Other RelatedProceedings.) |
—[*1] Vitanza, DiStefano & Dean, L.L.P., Norwich (Thomas A. Vitanza of counsel), forrespondent. Kelley M. Eckmair, Law Guardian, Oneonta.
Spain, J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredJuly 25, 2006, which, among other things, partially dismissed petitioner's application, in sevenproceedings pursuant to Family Ct Act article 6, to modify a prior order of visitation.
The parties are the parents of a daughter, born in 1997. In February 2004, Family Courtgranted custody of the child to respondent (hereinafter the mother) and, by order enteredFebruary 26, 2004, established a visitation schedule for petitioner (hereinafter the father). Thatorder subsequently was modified upon the parties' stipulation in open court in 2004 and a revisedvisitation schedule for the father was put in place which calls for, in addition to holiday time, thechild's visitation with the father every Friday from 3:00 p.m. to 7:00 p.m. and, on alternatingweekends, Saturday from noon to 8:00 p.m. and Sunday from 1:30 p.m. to 7:30 p.m. Thereafter,in February 2006, the father commenced the instant proceedings seeking overnight visitationduring his weekend visits with the child and two weeks during the summer. The mothercountered with a petition seeking further restriction of the father's visitation. At the [*2]conclusion of the fact-finding hearing that followed, Family Courtdenied the mother's cross petition and granted the father additional visitation with the childduring the summer, but denied his request for overnight visitation, concluding that such was notin the child's best interests at that point in time. This appeal by the father ensued.
In our view, Family Court's decision to continue to prohibit overnight visitation lacks asound and substantial basis in the record (see Matter of Sean I.R. v Jennifer J.B., 251AD2d 1034, 1034-1035 [1998]; cf.Matter of Horike v Freedman, 37 AD3d 978, 979 [2007]; Matter of Bernard UU. v Kelly VV., 28AD3d 880, 881-882 [2006]). Nothing in the record—including Family Court's incamera interview with the child—supports the mother's assertions that any behavior on thepart of, or life style and religious practices of, the father and his fiancée places the child inany danger, or that she is fearful or uncomfortable to such a degree that would justify the court'sdenial of overnight visitation. Indeed, a child's best interests will be optimally served by allowingthe development of a healthy relationship with both parents (see Weiss v Weiss, 52NY2d 170, 174-175 [1981]).
Here, the father has had regular unrestricted parenting time with the child except thatalternate weekend visits have been broken up by the child returning to the mother's home atnight. Rejecting the mother's petition which sought to further restrict the father's visitation,Family Court found, among other things, that the father has "a safe and appropriate home forovernight visitation," that the child's love for the father "is deep and abiding" and that the father'sfiancée is "an intelligent, mature and responsible person." The court also designated thefiancée as a suitable person to pick up and drop off the child—who is now 10 yearsof age—in the father's absence. Specifically, nothing in the record establishes any unusuallifestyle or beliefs on the part of the father and his fiancée which would justify prohibitingovernight visitation; also, they readily agreed to refrain from exposing the child to any ceremonyconnected to their religious practices.
Providing the flexibility necessary to permit the child to attend church and other religiousevents with the mother, as well as protections against her exposure to any aspect of the lifestyleof the father and his fiancée which could confuse the child's faith formation, can beaccomplished by an order for overnight visitation, which includes reasonable conditions set byFamily Court. Accordingly, we remit the matter to Family Court for further updated fact-finding,if necessary, and the fashioning of an appropriate order providing for overnight visitation (see Matter of Smith v Hoover, 24AD3d 1096, 1098 [2005]).
Peters, Lahtinen and Kane, JJ., concur; Crew III, J.P., not taking part. Ordered that the orderis modified, on the law and the facts, without costs, by reversing so much thereof as deniedovernight visitation; matter remitted to the Family Court of Otsego County for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.