| Matter of Sassower-Berlin v Berlin |
| 2009 NY Slip Op 00217 [58 AD3d 635] |
| January 13, 2009 |
| Appellate Division, Second Department |
| In the Matter of Elaine Sassower-Berlin,Respondent, v Leonard Berlin, as Executor of Stephen Berlin, Deceased, et al.,Appellants. |
—[*1] Barbara H. Kopman, Hicksville, N.Y., attorney for the children, appellant. Mangi & Graham, LLP, Westbury, N.Y. (Robert C. Mangi of counsel), forrespondent.
In a proceeding pursuant to Family Court Act article 6 to modify the visitation provisions ofa judgment of divorce entered August 17, 2001, which, in effect, terminated the mother'svisitation with the subject children, the appeals are from (1) an order of the Family Court,Nassau County (Eisman, J.), dated March 14, 2007, which granted the mother's petition to theextent of directing, inter alia, that a neutral mental health professional be appointed to receivewritten communications from the mother to the parties' two minor children, that the children beasked if they desire to see what the mother has written to them and whether they would like tohave a therapy session with the mother, and that the neutral mental health professional report tothe Family Court to advise the court as to the response, and directed that the mother be givenaccess through the neutral mental health professional, three times per year, to the children'smedical and school records, and (2) an order of the same court dated March 14, 2007, which,among other things, appointed Dr. John T. McCann as the neutral health professional.
Ordered that the orders are reversed, on the law and as a matter of discretion, with one bill ofcosts, and the mother's petition is denied in its entirety.
"As a general rule, some form of visitation by the noncustodial parent is alwaysappropriate,[*2]'absent exceptional circumstances, such as thosein which it would be inimical to the welfare of the child or where a parent in some manner hasforfeited his or her right to such access' " (Zafran v Zafran, 28 AD3d 753, 755 [2006], quoting Weiss vWeiss, 52 NY2d 170, 175 [1981]). We find, in the exercise of our discretion, that the recordcontains substantial evidence that visitation as awarded by the Family Court would bedetrimental to the welfare of the subject children. The Family Court's in camera interviews withthe then-16-year-old children confirmed that, as this Court previously found (see Matter of Sassower-Berlin vBerlin, 31 AD3d 771, 772 [2006]), they remain vehemently opposed to any form ofvisitation with the mother. The interviews also established that any attempts to further arelationship with the mother at this point in the children's lives would cause them undueemotional distress. Moreover, the children are almost 18 years of age and at that point will nolonger be subject to an order directing any form of visitation with the mother (see Matter of Lozada v Pinto, 7 AD3d801 [2004]). Accordingly, under the circumstances presented, the Family Court's orderslacked a sound basis in the record and were not in the children's best interest. However, we notethat the visitation provisions of the judgment of divorce provide that the mother may sendcorrespondence directly to the children, thus enabling the mother to communicate with thechildren in that limited manner in the hope that, at some point in the future, they might bereceptive to her efforts toward reconciliation.
We further find that granting the mother access to the children's medical and school recordswould not be in their best interests (seeMatter of Flamio v Flower, 46 AD3d 1265 [2007]). Rivera, J.P., Florio, Balkin andChambers, JJ., concur.