| Matter of Jave v Danial |
| 2010 NY Slip Op 00854 [70 AD3d 696] |
| February 2, 2010 |
| Appellate Division, Second Department |
| In the Matter of Nilda Jave, Appellant, v Issam Danial,Respondent. |
—[*1] Maria J. Frank, Yorktown Heights, N.Y., for respondent. Darren DeUrso, White Plains, N.Y., attorney for the children.
In related child custody and visitation proceedings pursuant to Family Court Act article 6,the mother appeals, as limited by her brief, from so much of an order of the Family Court,Westchester County (Cerrato, J.), dated August 21, 2008, as, after a hearing, denied that branchof her petition which was for permission to relocate to the State of Maryland with the parties'children, and awarded the father unsupervised visitation.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof, in effect, awarding the father unsupervised visitation with the children, andsubstituting therefor a provision directing that the father shall have supervised visitation with thechildren; as so modified, the order is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Family Court, Westchester County, to determinewho shall supervise visitation, to set a visitation schedule, and to direct a full forensic evaluationof the father and the preparation and completion of a home study, after which the Family Court,Westchester County, shall make a new determination as to whether the father's visitation withthe children needs to be supervised.
The record contains a sound and substantial basis for the court's denial of that branch of themother's petition which was for permission to relocate to the State of Maryland with the parties'children (see Matter of Tropea v Tropea, 87 NY2d 727 [1996]). The mother failed, onthis record, to demonstrate by a preponderance of the evidence that relocation to Maryland wasin the best interests of the children (seeMatter of Arroyo v Thompson, 63 AD3d 921 [2009]).
However, the court improvidently exercised its discretion in awarding unsupervisedvisitation to the father at this juncture (see Matter of Sahara K., 66 AD3d 1024 [2009]; see also Matter of Bullinger v Costa,63 AD3d 735 [2009]; Matter ofPowell v Blumenthal, 35 AD3d 615, 616-617 [2006]). Under the circumstances of thiscase, the Family Court must make a new determination as to whether the father's visitation withthe children needs to be supervised after the completion of a full forensic evaluation of the fatherand a home study (see Matter of SaharaK., 66 AD3d 1024 [2009]).[*2]
The remaining contention of the mother and the attorneyfor the children is without merit. Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur.