| Cervera v Bressler |
| 2008 NY Slip Op 03411 [50 AD3d 837] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Frank Cervera, Appellant, v Rossanna Bressler,Respondent. |
—[*1] Dewbury & Associates, P.C., Upper Nyack, N.Y. (Dara McDonald Warren of counsel), forrespondent. Joshua D. Siegel, Hartsdale, N.Y., attorney for the child.
In a matrimonial action in which the parties were divorced by judgment dated February 21,2001, the plaintiff appeals, as limited by his brief, from stated portions of an order of theSupreme Court, Westchester County (Lubell, J.), entered September 18, 2007, which, inter alia,referred those branches of his motion which were for unmonitored telephone contact andunsupervised visitation with the parties' child to the trial court, and denied those branches of hismotion which were for an award of an interim attorney's fee, to modify the apportionment ofresponsibility for payment of the forensic evaluator's fee, and to remove Joshua D. Siegel as theattorney for the child.
Ordered that on the Court's own motion, the notice of appeal from so much of the order asdeferred until trial the issues of unmonitored telephone contact and unsupervised visitation istreated as an application for leave to appeal, and leave to appeal is granted (see CPLR5701 [c]); and it is further,
Ordered that the order is modified, on the law, the facts, and in the exercise of discretion (a)by deleting the first, second, third, and fourth decretal paragraphs thereof referring to the trialcourt those branches of the father's motion which were for unmonitored telephone contact andunsupervised visitation and substituting therefor a provision restoring conditional unmonitored[*2]telephone contact and unsupervised visitation, (b) by deletingthe eighth and ninth decretal paragraphs thereof relating to an interim attorney's fee and forensicevaluator fees and substituting therefor a provision directing that a hearing be held to determinethe parties' relative financial positions, and (c) by deleting the sixteenth decretal paragraphthereof denying that branch of the plaintiff's motion which was to remove Joshua D. Siegel asattorney for the child and substituting therefor a provision granting that branch of the plaintiff'smotion; as so modified, the order is affirmed insofar as appealed from, with costs to theappellant, and the matter is remitted to the Supreme Court, Westchester County, for furtherproceedings consistent herewith, including, inter alia, an immediate hearing on the issues oftelephone contact and visitation, without an updated forensic report, the appointment of a newattorney for the child, and the setting of such conditions of unmonitored telephone contact andunsupervised visitation as the Supreme Court in its discretion may direct.
Since the parties' divorce in February 2001 they have been involved in constant litigationsurrounding custody of their child and the visitation rights of the noncustodial father. OnSeptember 25, 2003, in open court, the parties entered into a stipulation, later so-ordered by thecourt, in which they agreed to joint custody, with primary physical custody with the mother,visitation to the father on alternate weekends and one weekday per week, and the removal ofcertain restrictions on visitation that had been imposed temporarily.
In July 2005 the attorney for the child, then known as the law guardian for the child, movedby order to show cause, signed by the court on July 28, 2005, for supervised visitation, based onvarious allegations by the mother, including one allegation of sexual molestation. The sexualmolestation allegation was subsequently determined to be unfounded by the Office of Childrenand Family Services (hereinafter OCFS). Although a hearing on the motion of the attorney forthe child was scheduled at least once, for some reason, not apparent in the record, it never tookplace, and visitation by the father has remained supervised since July 28, 2005.
"Visitation is a joint right of the noncustodial parent and of the child" (Weiss v Weiss,52 NY2d 170, 175 [1981]; see Twersky v Twersky, 103 AD2d 775 [1984]), and "thebest interests of a child lie in his being nurtured and guided by both of his natural parents"(Daghir v Daghir, 82 AD2d 191, 193 [1981], affd 56 NY2d 938 [1982]; seeMatter of Gerald D. v Lucille S., 188 AD2d 650 [1992]). For a noncustodial parent todevelop a meaningful, nurturing relationship with his or her child, "visitation must be frequentand regular" (Daghir v Daghir, 82 AD2d at 194, affd 56 NY2d 938 [1982];see Matter of Graves v Smith, 264 AD2d 844 [1999]; Matter of Gerald D. v LucilleS., 188 AD2d at 650). "Absent extraordinary circumstances, where visitation would bedetrimental to the child's well-being, a noncustodial parent has a right to reasonable visitationprivileges" (Twersky v Twersky, 103 AD2d at 775-776; see Matter of Brian M. vNancy M., 227 AD2d 404 [1996]; Matter of Schack v Schack, 98 AD2d 802 [1983]).
"It is within the sound discretion of the court to determine whether visitation should besupervised" (Matter of Morgan v Sheevers, 259 AD2d 619, 620 [1999]; see Matter of Custer v Slater, 2 AD3d1227, 1228 [2003]), and its determination will not be set aside unless it lacks a sound andsubstantial basis in the record (seeMatter of Khan v Dolly, 39 AD3d 649, 651 [2007]; Matter of Kachelhofer v Wasiak, 10 AD3d 366 [2004]; Matterof Levande v Levande, 308 AD2d 450, 451 [2003]). "Supervised visitation is appropriatelyrequired only where it is established that unsupervised visitation would be detrimental to thechild" (Matter of Gainza v Gainza,24 AD3d 551 [2005]; seeRosenberg v Rosenberg, 44 AD3d 1022, 1024 [2007]; Purcell v Purcell, 5 AD3d 752,753 [2004]).[*3]
Here, because no hearing was ever held on the order toshow cause brought by the attorney for the child, signed by the court on July 28, 2005, visitationhas remained supervised, and telephone contact between father and daughter has been monitored,for about 2½ years, based solely on the hearsay allegations of the mother. These consistedof the allegations of molestation, which were determined by OCFS to be unfounded, and storiesof various incidents, the details of which were disputed by the father and, in any event, wereinsufficient to show that unsupervised visitation would be "detrimental to the child's well-being"(Matter of Graves v Smith, 264 AD2d at 845; see Purcell v Purcell, 5 AD3d at752). Under these circumstances, it is unacceptable to this Court that the hearing in this matterhas not been held, although ordered more than 2½ years ago. Moreover, where, as here,"there is much anger, hostility and resentment between the parties" (Matter of Schack vSchack, 98 AD2d at 802), it was especially unfortunate that the Supreme Court permitted themother to have so much control over visitation and, especially, over telephone contact betweenfather and daughter. This arrangement resulted in the violation of the father's right to "reasonableaccess and visitation" (Matter of Schack v Schack, 98 AD2d at 802; see Matter ofSmith v Molody-Smith, 307 AD2d 364, 365 [2003]).
Additionally, the court should not have required the father to pay the cost of supervising hisvisitation without determining the "economic realities," including his ability to pay and the actualcost of each visit (Matter of Rueckert v Reilly, 282 AD2d 608, 609 [2001]).
Contrary to the father's contentions, the court properly declined to direct the attorney for thechild to testify and submit his files and notes as part of discovery. To have ruled otherwise wouldhave resulted in two violations of the ethical requirements applicable to all attorneys, includingan attorney for the child, that the attorney may not disclose a client's confidences and may notbecome a witness in the litigation (see 22 NYCRR 7.2 [b]).
However, the court improvidently exercised its discretion in denying that branch of thefather's motion which was to remove Joshua D. Siegel as the attorney for the child. "An [attorneyfor the child] should not have a particular position or decision in mind at the outset of the casebefore the gathering of evidence . . . On the other hand, '[attorneys for children] arenot neutral automatons. After an appropriate inquiry, it is entirely appropriate, indeed expected,that a[n attorney for the child] form an opinion about what action, if any, would be in a child'sbest interest' " (Matter of Carballeira v Shumway, 273 AD2d 753, 756 [2000], quotingBesharov, Practice Commentaries, McKinney's Cons Law of NY, Book 29A, Family Ct Act§ 241, at 218-219).
"[An] attorney for the child[ ] [is] not an investigative arm of the court. While [attorneys forthe children], as advocates, may make their positions known to the court orally or in writing (byway of, among other methods, briefs or summations), presenting reports containing facts whichare not part of the record or making submissions directly to the court ex parte are inappropriatepractices" (Weiglhofer v Weiglhofer,1 AD3d 786, 789 [2003] [internal quotation marks and citations omitted]).
Here, in the order to show cause signed July 28, 2005, and the affirmation in support, as wellas in every affirmation submitted thereafter, the attorney for the child included facts which werenot part of the record, but which constituted hearsay gleaned from the mother. This behavior onthe part of the attorney for the child, as well as his repeated ad hominum attacks on the father'scharacter, is both unprofessional and improper, as it amounts to the attorney for the child actingas a witness against the father, in violation of the Rules of the Chief Judge (see 22NYCRR 7.2 [b]). [*4]Accordingly, the court should have grantedthat branch of the motion which was to remove Joshua D. Siegel as the attorney for the child.
With regard to attorney's fees and apportionment of the forensic evaluator's fees, as there isno evidence in the record that the financial circumstances of the parties have ever been fullyconsidered, or that the father has ever been afforded an opportunity to challenge theapportionment of fees, "a right expressly reserved to him in [a] prior order" (Cervera v Cervera, 43 AD3d 849,850 [2007]), we remit the matter to the Supreme Court, Westchester County, for a hearing toconsider the parties' relative financial positions.
Contrary to the father's contention, the Supreme Court, in effect, granted that branch of thefather's motion which was to rescind so much of the order dated May 15, 2007, as directed theparties to provide certain releases to the forensic evaluator by limiting the scope of such releasesto the contact and communication allowed by the so-ordered stipulation dated September 25,2003. Spolzino, J.P., Lifson, Florio and Dickerson, JJ., concur.