| Matter of Swett v Balcom |
| 2009 NY Slip Op 05713 [64 AD3d 934] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey Swett, Respondent, v Terra Balcom,Appellant. |
—[*1] Nancy K. Deming, Delhi, for respondent. Kelly M. Corbett, Law Guardian, Fayetteville.
McCarthy, J. Appeal from that part of a modified order of the Family Court of DelawareCounty (Becker, J.), entered June 13, 2008, which partially granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.
The parties are the unmarried parents of a daughter (born in May 2003). In August 2007,petitioner (hereinafter the father) sought to modify a May 2004 order which granted respondent(hereinafter the mother) sole custody and two-hour Sunday visitation to him at the mother'sresidence. The May 2004 order also permitted unsupervised and additional visitation but only atthe mother's sole discretion. The subject modification petition, prompted by the mother'spersistent refusals to permit expanded visitation, sought joint custody and increased visitation,including overnight visitation. Following a fact-finding hearing at which both parties testified,Family Court denied the father's request for joint custody but granted him additional visitation,including overnight visitation. The mother appeals.
Upon our review of the record, Family Court's decision to modify visitation on the groundthat petitioner made a sufficient showing of a change in circumstances has a sound andsubstantial basis in the record promoting the child's best interest (see Matter of Fish vManning, 300 AD2d 932, 933 [2002]; compare Matter of Rivera v Tomaino, 46 AD3d 1249, 1249-1250[2007]). It appears that the initial restrictions placed on the father's visitation had nothing to do[*2]with any parental misconduct or concerns about his fitness(compare Matter of De Cicco v DeCicco, 29 AD3d 1095, 1096-1097 [2006]; Matter of Fish v Manning, 300 AD2dat 933). Rather, they stemmed from the child's young age at the time and the fact that the father,prior to then, had no meaningful contact with her. As these concerns were no longer legitimateand because the mother refused to provide him with additional visitation despite reasonablerequests, a sufficient change in circumstances warranting modification wasdemonstrated.[FN1]
The testimony established that the father is gainfully employed, involved in a stablerelationship, lives in a home with a bedroom for the child and enjoys a cordial relationship withthe mother and her extended family. Moreover, when the mother was asked about her objectionsto increased visitation, the mother's only stated concern was that the child might beuncomfortable. Critically, the mother never voiced any concern about the father's ability toparent or the child's safety in his presence. Moreover, again when asked, she raised only twominor concerns about his home, one of which was that it lacked toys. The mother also concededthat the child should have a close relationship with the father and that they played well togetherduring visits.
In our view, nothing in the record—including potential reticence typical of a youngchild—reveals that expanded visitation would be harmful or detrimental to the child(see Matter of Rivera v Tomaino, 46 AD3d at 1250; Matter of Fish v Manning,300 AD2d at 933-934; compare Matter of Mix v Gray, 265 AD2d 692[1999]).[FN2]"[U]nless visitation is inimical to the [child's] best interests, 'Family Court is required tostructure a schedule which results in frequent and regular access by the noncustodial parent' "(Matter of Daniel v Pylinski, 61AD3d 1291, 1292 [2009], quoting Matter of Maziejka v Fennelly, 3 AD3d 748, 749 [2004]). Indeed,"a child's best interests will be optimally served by allowing the development of a healthyrelationship with both parents" (Matter of Rivera v Tomaino, 46 AD3d at 1250). Thushere, given evidence that the father lived in a suitable home and had a loving relationship withthe child, we find that increased visitation was in the child's best interest and further find that theschedule set by Family Court was appropriately structured to also reflect the child's best interest(see Matter of Daniel v Pylinski, 61 AD3d at 1292-1293; cf. Matter of Horike v Freedman, 37AD3d 978, 979 [2007]).
Finally, "[a]lthough always highly recommended and strongly encouraged, the [*3]appointment of a Law Guardian is a matter within Family Court'sdiscretion" (Matter of Bush v Stout,59 AD3d 871, 873 [2009] [internal quotations marks and citation omitted]). Here, we areunpersuaded that Family Court abused it discretion in failing to sua sponte appoint a LawGuardian for the child. The evidence before the court did not raise any concerns about the fitnessof either parent and was sufficient for the court to determine that increased visitation between thechild, who certainly knew her father and who was no longer an infant, and the father, whodemonstrated himself to be a loving and capable parent, was in the child's best interest (seeid. at 872-873; Matter of Ebel v Urlich, 273 AD2d 530, 532 [2000]; cf. Matter of Amato v Amato, 51AD3d 1123, 1124-1125 [2008]).
Cardona, P.J., Rose, Kane and Garry, JJ., concur. Ordered that the modified order isaffirmed, without costs.
Footnote 1: According to the father, herelied on representations made by the mother over the years that she would permit visitation athis home once the child learned how to talk.
Footnote 2: To this end, we are compelledto point out that the mother was apparently ready and willing to permit overnight visitation withthe father after he gave her permission to relocate out-of-state in the fall of 2006 (which she didbetween December 2006 and March 2007). An agreement between these parties dated October 8,2006 states that "[t]he father's rights of visitation shall be set forth by additional and differenttimes as to which the parties agree. Both parties will work out a schedule of visitations forholidays; such as Thanksgiving, Christmas, Easter, and mid-school year and summer vacations."