| Matter of Ross v Ross |
| 2011 NY Slip Op 06036 [86 AD3d 615] |
| July 19, 2011 |
| Appellate Division, Second Department |
| In the Matter of Galina Ross, Respondent, v Eric Ross,Appellant. |
—[*1] Jacqueline Sands, New City, N.Y., for respondent.
In a child custody and visitation proceeding pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from stated portions of an order of the Family Court, RocklandCounty (Christopher, J.), entered November 16, 2009, which, inter alia, after a hearing, grantedthat branch of the mother's petition which was to modify a prior order of custody and visitationdated December 3, 2002, awarding the parties joint legal and physical custody of their child, soas to award her sole legal and physical custody of the subject child and, in effect, granted thatbranch of the mother's petition which was to award him only supervised visitation, and deniedthat branch of his cross petition which was for an award of unsupervised visitation.
Ordered that the order entered November 16, 2009, is modified, on the law, (1) by deletingthe provision thereof, in effect, granting that branch of the mother's petition which was to awardthe father only supervised visitation, and substituting therefor a provision denying that branch ofthe mother's petition, and (2) by deleting the provision thereof denying that branch of the father'scross petition which was for an award of unsupervised visitation, and substituting therefor aprovision granting that branch of the father's cross petition; as so modified, the order enteredNovember 16, 2009, is affirmed insofar as appealed from, without costs and disbursements, andthe matter is remitted to the Family Court, Rockland County, for the determination of a liberal,unsupervised visitation schedule for the father; and it is further,
Ordered that pending the determination of a liberal, unsupervised visitation schedule for thefather, the father shall have unsupervised visitation with the child from 9:00 a.m. to 9:00 p.m. onSaturdays, and from 4:00 p.m. to 9:00 p.m. on Tuesdays, and shall pick up the child at, and returnhim to, the mother's residence for these unsupervised visitations, or the father shall enjoy suchinterim unsupervised visitation as the parties shall otherwise agree.
"Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that a modification is necessary to ensure thecontinued best interests and welfare of the child" (Matter of Pignataro v Davis, 8 AD3d 487, 488 [2004]; seeFamily Ct Act § 652; Matterof Buxenbaum v Fulmer, 82 AD3d 1223 [2011]; Matter of Gallo v Gallo, 81 AD3d 826 [2011]). "The best interestsof the child are determined by a review of the totality of the circumstances" (Matter of Garcia v Fountain, 82 AD3d979 [2011]). "As a custody determination depends to a great [*2]extent upon an assessment of the character and credibility of theparties and witnesses, the findings of the Family Court will not be disturbed unless they lack asound and substantial basis in the record" (Matter of Tercjak v Tercjak, 49 AD3d 772, 772 [2008]; see Matter of Gilmartin v Abbas, 60AD3d 1058 [2009]).
Here, the Family Court's determination that there had been a change in circumstances sincethe issuance of a prior order of custody and visitation dated December 3, 2002, and that it was inthe child's best interests to award sole custody to the mother, is supported by a sound andsubstantial basis in the record (see Family Ct Act § 652; Matter of Kramer v Berardicurti, 79AD3d 1794 [2010]; Matter ofSlovak v Slovak, 77 AD3d 1089 [2010]; Matter of Sinnott-Turner v Kolba, 60AD3d 774, 775, 776 [2009]).
However, the Family Court erred by, in effect, awarding the father only supervised visitationwith the parties' child (see Matter ofLaware v Baldwin, 42 AD3d 696, 697 [2007]; Matter of Morash v Minucci, 299AD2d 486, 486-487 [2002]; Matter of Eric L. v Dorothy L., 130 AD2d 660, 661 [1987];see generally Matter of Chebuske v Burnhard-Vogt, 284 AD2d 456 [2001]). Indeed,while the Family Court's credibility assessments are entitled to great weight, the Family Courtimproperly disregarded the unequivocal conclusions and recommendations of thecourt-appointed forensic examiner, and placed undue emphasis on the wishes of the child thatvisitation be supervised, especially in light of his maturity level and the clear potential formanipulation, as identified by the forensic examiner (see Ekstra v Ekstra, 78 AD3d 990 [2010]; Matter of Volpe v Volpe, 61 AD3d691, 692 [2009]). Here, the record reflects that the father had liberal, unsupervised visitationwith the subject child throughout most of the child's life, and that the child wanted to see thefather.
The remaining contentions of the parties and the attorney for the child are either withoutmerit, unpreserved for appellate review, or not properly before this Court (see CPLR5501; Broser v Dworman, 78 AD3d979, 980 [2010]).
Accordingly, the matter must be remitted to the Family Court, Rockland County, for thedetermination of a liberal, unsupervised visitation schedule for the father. Covello, J.P., Eng,Leventhal and Cohen, JJ., concur.
Motion by the attorney for the child, inter alia, in effect, to strike stated portions of theappellant's brief on an appeal from an order of the Family Court, Rockland County, enteredNovember 16, 2009, on the ground that the appellant's brief contains matter dehors the recordand contains personal and false attacks against the attorney for the child and the Family Court.By decision and order on motion of this Court dated December 28, 2010, that branch of themotion which is, in effect, to strike stated portions of the appellant's brief was held in abeyanceand referred to the panel of Justices hearing the appeal for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the submission of the appeal, it is[*3]
Ordered that the branch of the motion which is, in effect,to strike stated portions of the appellant's brief is denied. Covello, J.P., Eng, Leventhal andCohen, JJ., concur.