| Matter of Parker v Parker |
| 2009 NY Slip Op 09107 [68 AD3d 1277] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anne-Marie K. Parker, Appellant, v Paul M.Parker, Respondent. (And Four Other Related Proceedings.) |
—[*1] Karin H. Marris, Law Guardian, Syracuse.
Garry, J. Appeal from an order of the Family Court of Madison County (McDermott, J.),entered November 7, 2008, which, among other things, dismissed petitioner's application, in fiveproceedings pursuant to Family Ct Act article 6, for enforcement of a prior order of custody andvisitation.
The parties were divorced in 2004. Under the terms of a prior custody order that wasincorporated into and modified by the divorce judgment, they were granted joint legal custody oftheir two children, a daughter born in 1992, and a son born in 1998. Principal physical custodywas granted to petitioner (hereinafter the mother) with scheduled visitation with both childrenfor respondent (hereinafter the father). In January 2008, Family Court entered an order that,among other things, modified the father's visitation to provide that, in view of the daughter's age,his visitation with her would take place according to her desires. The order continued the father'sscheduled visitation with the son and attached thereto was a document entitled "Bill of Rights forChildren whose Parents are Separated." The order provided that interference with the rightsspecified therein could result, after a hearing, in modification, suspension or termination ofcustody or visitation.
In June 2008, the mother filed a petition for enforcement of the January 2008 order, [*2]alleging multiple violations of the bill of rights by the father. Thefather subsequently filed four petitions seeking enforcement and modification of his rights ofvisitation. Following a fact-finding hearing and a Lincoln hearing with each of thechildren, Family Court dismissed the mother's petition and granted the father's request formodification by establishing a new and more detailed visitation schedule. The order furtherdirected the mother to provide the father with a written schedule of the son's activities as soon asthey were known to her and specifically provided that the father had the right to communicatewith officials at the children's schools, attend school events, and receive copies of school reportsand documents. The mother now appeals, contending that the father's visitation should have beenterminated.
Family Court determined that the mother's claims were not sufficiently supported by theevidence, and we agree. The court's factual findings are to be accorded great deference and arenot to be disturbed when, as here, they are supported by a sound and substantial basis in therecord (see Matter of Siler vWright, 64 AD3d 926, 928 [2009]; Matter of Christian F., 42 AD3d 716, 717 [2007]). Further, themother's petition did not seek modification or termination of the father's visitation (seeMatter of Hover v Shear, 232 AD2d 749, 750 [1996], lv dismissed and denied 89NY2d 964 [1997]). In any event, denial of visitation is a " 'drastic remedy which may be orderedonly in the presence of compelling reasons and substantial evidence that such visitations aredetrimental to the child's welfare' " (Matter of Laware v Baldwin, 42 AD3d 696, 697 [2007], quotingMatter of McCauliffe v Peace, 176 AD2d 382, 383-384 [1991]; see Matter of Jones v McMore, 37AD3d 1031, 1032 [2007]). The record here offers no support for such a finding, but insteadreveals that the son's contact with his father is in his best interest. Unfortunately, there is alsoample evidence to support the court's admonishment that the parents have been using theirchildren as weapons in their battles, and that the children are paying a severe price for theirparents' animosity and failure to communicate. However, this harm cannot be diminished bydenying the son time shared with his father.
Mercure, J.P., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.