| Matter of Ciccone v Ciccone |
| 2010 NY Slip Op 05764 [74 AD3d 1337] |
| June 29, 2010 |
| Appellate Division, Second Department |
| In the Matter of Debbie Ciccone, Respondent, v ThomasCiccone, Appellant. |
—[*1] Jeffrey C. Bluth, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel),attorney for the child.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from anorder of the Family Court, Kings County (Olshansky, J.), dated July 27, 2009, which, after ahearing, granted the mother's petition for supervised visitation with the parties' daughter.
Ordered that the order is affirmed, without costs or disbursements.
"The determination of whether to award visitation to a noncustodial parent lies within thesound discretion of the hearing court, and must be based upon the best interest of the child"(Matter of David V. v Rosalind W., 62 AD3d 717, 717 [2009]). The court'sdetermination in this regard "should not be disturbed on appeal unless it lacks a substantialevidentiary basis in the record" (Matter of Thompson v Yu-Thompson, 41 AD3d 487,488 [2007]; see Jordan v Jordan, 8 AD3d 444, 445 [2004]). "The natural right ofvisitation jointly enjoyed by the noncustodial parent and the child is more precious than anyproperty right" (Resnick v Zoldan, 134 AD2d 246, 247 [1987]), and "[a]bsentexceptional circumstances, some form of visitation with the noncustodial parent is alwaysappropriate" (Matter of McFarland v Smith, 53 AD3d 500, 500 [2008] [internalquotation marks omitted]). "[T]he denial of those rights to a natural parent is a drastic remedywhich should only be invoked when there is substantial evidence that visitation would bedetrimental to the child" (Matter of Grisanti v Grisanti, 4 AD3d 471, 473 [2004] [internalquotation marks omitted]).
The Family Court's decision to award the mother monthly supervised visits with the subjectchild has a sound and substantial basis in the record. The record establishes that the mother has ahistory of mental health problems that impaired her ability to parent her children. However, therecord also establishes that the mother's condition has significantly improved over the lastdecade through her voluntary compliance with mental health treatment. Although the motheradmitted to physically abusing her now-adult son on at least one occasion in 1991 when he wasthree years old, the record evinces that the mother is remorseful and has taken responsibility forthese actions.
The Family Court's determination is also consistent with the opinion of the court-appointedforensic psychologist, the opinion of the court-appointed social worker who supervised visitationbetween the mother and the subject child, and the position of the attorney for the child. Whilenot determinative, [*2]the recommendations of court-appointedevaluators and the position of the attorney for the child are entitled to some weight unlesscontradicted by the record (see Rosenberg v Rosenberg, 44 AD3d 1022, 1024-1025[2007]; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917 [2007]).
The Family Court considered that the mother was found to have committed acts constitutingthe family offense of stalking in the fourth degree (Family Ct Act §§ 812, 832;Penal Law § 120.45 [2]) in a proceeding commenced by her adult son in August 2008(see Matter of Ciccone v Ciccone, 73 AD3d 1052 [2010]). Contrary to the father'scontention, the Family Court reviewed the findings and the hearing testimony in the familyoffense proceeding, and properly determined that they do not establish that monthly visitation,supervised by a court-appointed social worker or another mental health professional agreed uponby the parties and the attorney for the child, would be detrimental to the welfare of the subjectchild.
Both court-appointed experts reported that the mother acted appropriately with the subjectchild and was able to gently and positively engage the child, without displaying frustration,despite the child's limited verbal communication skills and special needs. The court-appointedsocial worker who supervised visitation between the mother and the subject child testified thatshe was impressed by the mother's behavior, in that the mother did not overwhelm the child andremained in control of her emotions despite the fact that she had been waiting to see her daughterfor so many years. Since substantial evidence does not exist that supervised "visitation would bedetrimental to the child," the Family Court's determination should not be disturbed (Matter ofGrisanti v Grisanti, 4 AD3d at 473). Covello, J.P., Angiolillo, Leventhal and Sgroi, JJ.,concur.