| Matter of Abare v St. Louis |
| 2008 NY Slip Op 04008 [51 AD3d 1069] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Christina Abare, Respondent, v Travis St. Louis,Appellant. |
—[*1] Livingston L. Hatch, Plattsburgh, for respondent. Aaron Turetsky, Law Guardian, Keeseville.
Rose, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredSeptember 25, 2006, which partially granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 2001) and a son (born in 2004). In 2005, the parties agreed to a custody ordergranting the mother sole custody of the children with the father having limited visitationsupervised by his sister. Five months later, the mother applied for modification of the order toeither terminate the father's visitation or provide for supervision by an agency. She alleged thatthe father's sister had failed to supervise the visitation and the daughter had developed emotionaland psychological problems due to her visitation with him. After a trial, Family Court denied thefather any visitation with the daughter, but granted him limited visitation with the son, to besupervised by an agency. The court also issued orders of protection directing the father to, amongother things, stay away from the daughter until her 18th birthday.
The father now appeals, arguing first that Family Court erred in refusing to appoint substitutecounsel for him when he developed a disagreement with his assigned counsel. As Family Courtinformed him, however, his disagreement arose from his desire that counsel [*2]investigate incidents which were not relevant to the issues in thecustody proceeding. When the father continued to insist that he not be represented by his presentcounsel and sought an adjournment to retain his own attorney, the court granted him an ampleadjournment for that purpose. Under these circumstances, we find that the father failed toestablish grounds for the appointment of substitute counsel (see Matter of Rutz v Carinci, 6 AD3d 992, 993 [2004]; Matterof Petkovsek v Snyder, 251 AD2d 1086, 1086 [1998]; Matter of Mooney v Mooney,243 AD2d 840, 841 [1997]). Nor did Family Court err in allowing the father to proceed pro se, ashe was fully apprised of his right to representation by his assigned counsel and was advised thatproceeding without counsel could place him at a disadvantage (cf. Matter of Hassig v Hassig, 34 AD3d1089, 1091 [2006]).
The father next contends that Family Court erred in denying him visitation with his daughter.In reviewing the denial of visitation, as with the issue of custody, we defer to Family Court'scredibility determinations and, where there exists a sound and substantial basis in the record, wegenerally do not disturb the court's findings (see Matter of Jones v McMore, 37 AD3d 1031, 1031-1032 [2007];Matter of Anson v Anson, 20 AD3d603, 604 [2005], lv denied 5 NY3d 711 [2005]). Here, the record amplydemonstrates that visitation would be detrimental to the welfare of the child, as it must to justifya total denial of visitation (see Matter of Jones v McMore, 37 AD3d at 1032; Matter of Frierson v Goldston, 9 AD3d612, 614 [2004]). The daughter's therapist testified that the child was referred to therapy foroppositional behaviors, defiant behaviors, cruelty to animals, self-mutilation, suicidal ideation,homicidal ideation toward her mother, and rapid mood swings. She attributed these problems tothe child's highly traumatic relationship with the father, noting that the daughter was extremelyfearful of him and did not want to visit with him because he hit her, screamed at her, swore ather, and made vile and abusive comments about her and her mother. The therapist also testifiedthat the child demonstrated a definite and significant improvement when she stopped seeing thefather. This testimony, together with the daughter's treatment records and the father's admissionsregarding his difficulty controlling his anger, his extended incarceration for repeated violations oforders of protection, and his unmedicated manic depression, supports the conclusion thatcontinued visitation with the father would be detrimental to her well-being.
Nor do we find merit in the father's claim that it was inconsistent for Family Court to denyvisitation with the daughter and permit it with the parties' son, who was two years old at the timeof trial. The record contains no evidence that the son has a similar fear of the father or that thereis any other basis to find that supervised visitation would be harmful to his well-being. As toeach child, the court's " 'primary consideration in deciding the issue of visitation is the bestinterest of the child' " (Matter of Frierson v Goldston, 9 AD3d at 614, quoting Matterof Rogowski v Rogowski, 251 AD2d 827, 827 [1998]). Certainly, differing circumstances asto siblings can justify differing determinations as to visitation (see e.g. Matter of Horike v Freedman,37 AD3d 978 [2007]).
Finally, Family Court did not err by issuing the orders of protection precluding the father'scontact with the daughter until she reaches her 18th birthday (see Matter of Anson vAnson, 20 AD3d at 604; Matter ofKrista I. v Gregory I., 8 AD3d 696, 698 [2004]; Matter of Morse v Brown, 298AD2d 656, 657 [2002]). Such restrictions are authorized under Family Ct Act article 6 and areappropriate here in light of the father's admitted difficulty controlling his temper and hisdaughter's fear of him (see Matter ofStitzel v Brown, 1 AD3d 826, 828 [2003]).
Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.