| Matter of Bonthu v Bonthu |
| 2009 NY Slip Op 08613 [67 AD3d 906] |
| November 17, 2009 |
| Appellate Division, Second Department |
| In the Matter of Srinivas Bonthu, Respondent, v BharathiBonthu, Appellant. |
—[*1] Adrienne Abraham, White Plains, N.Y., for respondent. Todd D. Kadish, Brooklyn, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Dutchess County (Amodeo,J.), dated August 27, 2008, as, after a hearing, granted the father's petition to modify a priorcustody agreement so as to award him sole legal and physical custody of the subject child,directed that her visitation with the child be supervised, the scheduling of which was, in effect,delegated to a mutually agreed upon supervisor, and conditioned future unsupervised visitationon her successfully completing therapy.
Ordered that the order is modified, on the law, by deleting the provisions thereof, (1) ineffect, delegating the scheduling of supervised visitation to a mutually agreed upon supervisor,and (2) conditioning future unsupervised visitation on the mother successfully completingtherapy and substituting therefor a provision directing the mother to attend therapy as acomponent of supervised visitation; as so modified, the order is affirmed insofar as appealedfrom, without costs or disbursements, and the matter is remitted to the Family Court, DutchessCounty, to set a schedule of supervised visitation.
To modify an existing custody arrangement, there must be a showing of a change ofcircumstances such that modification is required to protect the best interests of the child (see Matter of Zeis v Slater, 57 AD3d793 [2008]; Matter of Wirth vWirth, 56 AD3d 787, 788 [2008]). The best interests of the child are determined by areview of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]). "While priority should usually be given to the parent who was first awarded custody bythe court or to the parent who obtained custody by voluntary agreement, it is nevertheless butone factor to be weighed by the court in deciding whether a change of custody is warranted" (Matter of Lichtenfeld v Lichtenfeld,41 AD3d 849, 850 [2007]; see Eschbach v Eschbach, 56 NY2d at 171). "Sincethe Family Court's custody determination is largely dependent upon an assessment of thecredibility of witnesses and upon the character, temperament, and sincerity of the parents, theFamily Court's determination should not be disturbed unless it lacks a sound and substantialbasis in the record" (Matter of Zeis v Slater, 57 AD3d [*2]at 793-794). Here, the Family Court's award of sole custody to thefather, which was consistent with the opinion of the court-appointed psychologist and theposition of the attorney for the child (see Matter of Verret v Verret, 37 AD3d 479 [2007]), has a soundand substantial basis in the record and will not be disturbed.
The court's determination that the mother's visitation with the child should be supervised isalso supported by a sound and substantial basis in the record (see Matter of Abranko v Vargas, 26 AD3d 490, 491 [2006]).
However, the Family Court erred in failing to set a supervised visitation schedule, implicitlyleaving it to the supervisor to determine (see Matter of Juliane M., 23 AD3d 473 [2005]; Matter of St. Pierre v Burrows, 14AD3d 889, 892 [2005]; Matter of Rueckert v Reilly, 282 AD2d 608, 609 [2001]).Accordingly, the matter must be remitted to the Family Court, Dutchess County, to set aschedule of supervised visitation in accordance with the best interests of the child (see Matterof Millett v Millett, 270 AD2d 520, 522 [2000]).
The Family Court also erred in conditioning any future unsupervised visitation on the mothersuccessfully completing therapy (seeJordan v Jordan, 8 AD3d 444, 445 [2004]; Matter of Gadomski v Gadomski,256 AD2d 675, 677 [1998]). Nevertheless, the mother is directed to attend therapy as acomponent of supervised visitation (seeMatter of Sinnott-Turner v Kolba, 60 AD3d 774, 776 [2009]).
The mother's remaining contention is without merit. Mastro, J.P., Fisher, Angiolillo andLeventhal, JJ., concur.