| Linda R. v Ari Z. |
| 2010 NY Slip Op 01843 [71 AD3d 465] |
| March 9, 2010 |
| Appellate Division, First Department |
| Linda R., Appellant, v Ari Z.,Respondent. |
—[*1] Rhonda R. Weir, Brooklyn, for respondent. Chemtob, Moss, Forman & Talbert, LLP, New York (Susan M. Moss of counsel), LawGuardian.
Order, Supreme Court, New York County (Laura E. Drager, J.), entered August 21, 2009,which, in a child custody proceeding, found that the father should have unsupervised visitationwith the subject child after a transition period managed by an "intervention therapist,"unanimously modified, on the law, to delete the portion of the order that provides for theintervention therapist to determine when unsupervised visitation is to begin, and otherwiseaffirmed, without costs. Order, same court and Justice, entered July 31, 2009, which, inter alia,appointed an intervention therapist to supervise the immediate ending of the father's supervisedvisitation, unanimously modified, on the law, to delete the phrase "and shall follow herdirections" in the sixth decretal paragraph, and otherwise affirmed, without costs. Order, samecourt and Justice, entered October 29, 2009, which, inter alia, temporarily awarded the fatherdecision-making custody with respect to the child's mental health issues, unanimously modified,on the law, to delete the portion of the order requiring that the child's passport be turned over tothe mother's attorney, and otherwise affirmed, without costs. Order, same court and Justice,entered November 13, 2009, which, insofar as appealed from as limited by the briefs, directedthat the mother's counsel was not to attend the intervention therapy sessions, unanimouslyaffirmed, without costs.
"[T]he determination of whether visitation should be supervised is a matter left to FamilyCourt's sound discretion[,] and its findings, to which deference is to be accorded, will not bedisturbed on appeal unless they lack a sound basis in the record" (Matter of Custer v Slater, 2 AD3d1227, 1228 [2003] [internal quotation marks and ellipsis omitted]). Here, despite the LawGuardian's view to the contrary (see id.; Baker v Baker, 66 AD3d 722, 723-724 [2009]), the court's findingthat the child should transition to unsupervised visitation with the father has ample support in therecord, including the opinion of the court-appointed forensic psychologist and the testimony ofimpartial witnesses that the child seemed comfortable and relaxed while visiting with her father.Further, there is no indication that the court "ignored" evidence of the child's feelings toward herfather; rather, in providing for a gradual transition to unsupervised visitation, the court explicitlytook the child's feelings into account.[*2]
However, the court improperly delegated to a mentalhealth professional its authority to determine issues involving the best interests of the child, i.e.,when unsupervised visitation should commence (see Matter of Held v Gomez, 35 AD3d 608, 608-609 [2006];Matter of Henrietta D. v Jack K., 272 AD2d 995 [2000]), and we modify accordingly.The parties may, if so advised, make another application to the court regarding unsupervisedvisitation, at which time the court may render a decision on that issue, with the assistance, ifnecessary, of further reports from the intervention therapist.
With respect to the child's passport, the parties' settlement stipulation allows the mother totravel with the child to Canada for 10 days at a time, and there has never been any suggestion bythe father himself or his attorney that the mother is a flight risk or has any intention of removingthe child to Canada (cf. Anonymous v Anonymous, 120 AD2d 983, 984 [1986];Kresnicka v Kresnicka, 42 AD2d 607 [1973]). Accordingly, we modify to delete thedirective concerning the child's passport.
"[N]o agreement of the parties can bind the court to a disposition other than that which aweighing of all of the factors involved shows to be in the child's best interest" (Friederwitzerv Friederwitzer, 55 NY2d 89, 95 [1982]). Thus, a child is not bound by the support andcustody terms of an agreement between parents, and courts can modify these terms in the bestinterests of the child (see Family Ct Act § 461 [a]; Matter of Boden vBoden, 42 NY2d 210, 212 [1977]; cf. Sassian v Sassian, 126 AD2d 984 [1987]). Therecord contains a sound basis for finding that, during the transition period from supervised tounsupervised visitation, and subject, of course, to further order of the court, it is in the bestinterests of the child that the terms of the stipulation with respect to her mental health bemodified so as to give the father decision-making authority.
We have considered the parties' remaining contentions and find them unavailing.Concur—Tom, J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ.