| Matter of Nikolic v Ingrassia |
| 2008 NY Slip Op 00503 [47 AD3d 819] |
| January 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Ivo A. Nikolic,Respondent-Appellant, v Carol Ann Ingrassia,Appellant-Respondent. |
—[*1] William C. House, New York, N.Y., for respondent-appellant. Mona N. Glanzer, Lawrence, N.Y., Law Guardian.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from stated portions of an order of the Family Court, Nassau County(Pessala, J.), dated December 29, 2006, which, after a hearing, inter alia, awarded physicalcustody of the subject child to the father, and the father cross-appeals, as limited by his brief,from so much of the same order as awarded visitation to the mother for all weekends, holidays,and summer vacations.
Ordered that the order is modified, on the law and in the exercise of discretion, by deletingthe provision thereof awarding visitation to the mother for all weekends, holidays, and summervacations; as so modified, the order is affirmed, without costs or disbursements, and the matter isremitted to the Family Court, Nassau County, for determination of a new visitation schedule inaccordance herewith; and it is further,
Ordered that pending determination of a new visitation schedule, the visitation schedule setforth in the order dated December 29, 2006 shall remain in effect.
The parties are the parents of a daughter born July 21, 2002. The mother has a son from aprevious marriage, born April 30, 1989. The mother and the father separated in April 2004 andboth parents filed petitions for custody of their daughter, who remained with the mother duringthe [*2]pendency of the proceedings, with steadily increasingvisitation to the father. On December 29, 2006 the Family Court awarded custody to the father,with visitation to the mother for all weekends, holidays, and summer vacations.
The court's paramount concern in any custody dispute is whether, under the totality of thecircumstances, a determination of custody is in the best interests of the child (see Eschbach vEschbach, 56 NY2d 167, 171 [1982]; Neuman v Neuman, 19 AD3d 383, 384 [2005]). Deference shouldbe afforded the hearing court which observed witnesses and evaluated evidence firsthand (seeEschbach v Eschbach, 56 NY2d at 173), and "[t]he hearing court's custody determinationshould not be set aside unless it lacks a sound and substantial basis in the record" (see Matter of Fallarino v Ayala, 41AD3d 714, 715 [2007]; Neuman v Neuman, 19 AD3d at 384).
Here, the Family Court found that the mother had interfered with the father's visitation rightsby demonstrating a "relentless determination . . . to have the father characterized asan abuser" and thereby preclude his access to the child. The court's finding is supported bysubstantial evidence, including several unfounded reports of abuse made by the mother to thepolice and to Child Protective Services, as well as the opinion of a psychologist that the youngchild may have been coached to say that her father had hit her. We have recognized that the "'[w]illful interference with a noncustodial parent's right to visitation is "so inconsistent with thebest interests of the child as to raise a strong probability that the [offending party' is unfit to act asa custodial parent " ' " (Matter of Joosten v Joosten, 282 AD2d 748 [2001]; seeEntwistle v Entwistle, 61 AD2d 380, 384-385 [1978]).
In awarding custody to the father, the Family Court declined to follow the recommendationof a forensic evaluator that the mother was the preferred custodial parent. The recommendationsof court appointed experts are but one factor to be considered and are entitled to some weight (see Matter of Kozlowski v Mangialino,36 AD3d 916, 917 [2007]; Miller v Pipia, 297 AD2d 362, 365 [2002]). However,such opinions are not determinative and do not usurp the judgment of the trial judge (see Matter of Kozlowski v Mangialino,36 AD3d 916, 917 [2007]; Neuman v Neuman, 19 AD3d at 384). Here, the forensicevaluator interviewed the parties prior to the time it was discovered that the mother intentionallyinterfered with the father's visitation rights and without consulting outside sources to test thepossibility that the mother was lying about the father's conduct. Thus, the court properly declinedto follow that evaluator's recommendation, which was based upon incomplete information.
Further, contrary to the mother's contentions, the custody order did not fail to take intoaccount the child's relationship with her brother. While courts should be reluctant to separatesiblings, there are circumstances in which the best interests of each child differ (see Matter of Lightbody v Lightbody,42 AD3d 537, 538 [2007]). Here, the record lacked evidence of a close relationship betweenthe child and her brother, who was 13 years older with plans to go to college. Further, thevisitation schedule afforded him ample opportunity to see his sister, since visitation was grantedexclusively on days in which school is not in session.
We agree with the Family Court that the mother should be afforded liberal visitation, butdisagree with the amount of visitation time granted. "When adjudicating visitation rights, thecourt's first concern [should be] the welfare and interests of the child" (McGrath v D'Angio-McGrath, 42AD3d 440, 441 [2007]). The visitation schedule here awards every weekend, holiday, andsummer vacation to the mother. While this schedule takes into account the child's need for themother, it fails to take into account the importance of the child's relationship with the father andhis extended family by depriving the child of contact during times usually reserved for familygatherings and recreation. [*3]To that extent, the visitationschedule is contrary to the best interests of the child. We remit the matter to the Family Court,Nassau County, for a hearing to determine a visitation schedule in accordance with the bestinterests of the child in developing her relationships with the father and the families of themother and the father, by reserving some weekends, holidays, or summer vacation days to thefather. Mastro, J.P., Covello, Angiolillo and Carni, JJ., concur.