| Matter of Sinnott-Turner v Kolba |
| 2009 NY Slip Op 01809 [60 AD3d 774] |
| March 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Christine Sinnott-Turner,Respondent, v Joseph Kolba, Appellant. |
—[*1] Janis W. Sarubbi, White Plains, N.Y., for respondent. Nancy Tremarzo, Poughkeepsie, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6,the father appeals from (1) an order of the Family Court, Dutchess County (Sammarco, J.), datedOctober 24, 2007, which, after a hearing, granted the mother's petition to modify an order of thesame court dated June 23, 1998, inter alia, awarding her sole custody of the child and grantinghim unsupervised visitation with the child, to the extent of terminating his unsupervisedvisitation with the child and directing that visitation between him and the child be supervised bya therapist, and denied his petition alleging violation of an order of visitation and for a change ofcustody of the child from the mother to him, and (2) an order of the same court dated December4, 2007, which, without a hearing, inter alia, designated a therapist to conduct the supervised andtherapeutic visitation.
Ordered that the order dated October 24, 2007 is modified, on the law, by deleting theprovision thereof stating "the therapeutic supervision shall commence upon the timetableselected by the therapist conducting the therapeutic visits after intake appointments with thechild and the father and the mother, if required"; as so modified, the order dated October 24,2007, is affirmed, and the matter is remitted to the Family Court, Dutchess County, for furtherproceedings on the issue of visitation; and it is further,[*2]
Ordered that the order dated December 4, 2007, isaffirmed; and it is further,
Ordered that one bill of costs is awarded to the mother.
An order entered June 23, 1998, in Family Court, awarded the mother, who was nevermarried to the father, custody of the subject child, and weekly visitation to the father. In 2006,after the child refused to visit the father, the mother commenced a proceeding to modify the priororder, contending, inter alia, that the father was abusing the child. The father, contending that themother was not providing visitation pursuant to the prior order, commenced a separateproceeding to transfer custody of the child from the mother to him and to find the mother inviolation of the prior order. The Family Court suspended visitation, entered a temporary order ofprotection on behalf of the mother and child against the father, conducted a forensic evaluation,and held a hearing. After the hearing, the Family Court granted the mother's petition and deniedthe father's petition, directing that visitation between the father and child be supervised by atherapist.
A court may modify an order awarding custody and visitation upon a showing that there hasbeen a subsequent change of circumstances and that modification is in the best interests of thechild (see Family Ct Act § 652; Matter of Abranko v Vargas, 26 AD3d 490, 491 [2006]). Anoncustodial parent is entitled to meaningful visitation, and denial of that right must be based onsubstantial evidence that visitation would be detrimental to the welfare of the child (seeMatter of Morash v Minucci, 299 AD2d 486, 486-487 [2002]). However, the determinationof visitation is within the sound discretion of the trial court based upon the best interests of thechild, and its determination will not be set aside unless it lacks a sound and substantial basis inthe record (see Cashel v Cashel, 46AD3d 501 [2007]). Although a child's wishes are not determinative, his or her wishes, age,and maturity should be given considerable weight (see Matter of Cornell v Cornell, 8 AD3d 718, 719 [2004];Matter of Eric L. v Dorothy L., 130 AD2d 660, 661 [1987]).
Here, the Family Court properly determined that the father failed to establish that a changein circumstances warranted a transfer of custody from the mother to him (see Neuman v Neuman, 19 AD3d383, 384 [2005]). Further, as the parties testified that they frequently cooperated inarranging visitation schedules based on their schedules, the Family Court properly determinedthat the father failed to establish that the mother violated the prior order of visitation (see Matter of Perez v Sepulveda, 54AD3d 347 [2008]).
Moreover, in light of the evidence that the child feared the father and refused to visit him,and that the father had hit the child on more than one occasion, the Family Court properlydetermined that the mother had demonstrated a change in circumstances sufficient to warrantmodification of the visitation order (see Family Ct Act § 652; Matter of Abranko v Vargas, 26 AD3d490, 491 [2006]).
In custody disputes, the value of forensic evaluations of the parents and children has longbeen recognized (see 22 NYCRR 202.18; Ekstra v Ekstra, 49 AD3d 594, 595 [2008]). Thus, the FamilyCourt properly appointed a neutral expert to conduct forensic evaluations of the parties and theirchild (see Ekstra v Ekstra, 49 AD3d at 595). Contrary to the father's contention, theFamily Court did not err in qualifying the forensic evaluator as an expert (see 22NYCRR 202.18; Ekstra v Ekstra, 49 AD3d at 595; Neuman v Neuman, 19 AD3dat 384).
Although the evidence suggests that the forensic evaluator's report may have contained [*3]inaccuracies, any error introduced by the forensic evaluator's reportor testimony was harmless, as there was a sound and substantial basis in the record for theFamily Court's determination without consideration of the forensic evaluator's report ortestimony (see Matter of Tercjak vTercjak, 49 AD3d 772, 773 [2008]; Matter of Vanjak v Pesa, 26 AD3d 512 [2006]; Matter ofMorash v Minucci, 299 AD2d at 486-487).
Moreover, a court has the authority to order a party to submit to counseling as a componentof visitation (see Matter of Thompson vYu-Thompson, 41 AD3d 487, 488 [2007]; Matter of Powell v Blumenthal, 35 AD3d 615, 617 [2006]). TheFamily Court's determination that visitation supervised by a therapist was in the best interests ofthe child has a sound and substantial basis in the record and should not be disturbed (seeMatter of Thompson v Yu-Thompson, 41 AD3d at 488). However, the Family Courtimproperly delegated the authority to determine future issues involving visitation to a therapist(see Matter of Held v Gomez, 35AD3d 608 [2006]).
The parties' remaining contentions are either academic or without merit. Fisher, J.P., Dillon,Belen and Chambers, JJ., concur.