| Cervera v Bressler |
| 2011 NY Slip Op 09257 [90 AD3d 803] |
| December 20, 2011 |
| Appellate Division, Second Department |
| Frank Cervera, Appellant, v Rossanna Bressler,Respondent. |
—[*1] Kathleen M. Hannon, Scarsdale, N.Y., attorney for the child.
In a matrimonial action in which the parties were divorced by judgment dated February 21,2001, the plaintiff father appeals, as limited by his brief, from so much of an order of theSupreme Court, Westchester County (DiBella, J.), entered July 29, 2010, as granted that branchof the motion of the defendant mother which was to modify a so-ordered stipulation datedSeptember 25, 2003, so as to award her sole legal and physical custody of the parties' child,directed that the plaintiff and the child initially attend reunification therapy and, thereafter,supervised visitation with a therapist for a period of three months, and denied that branch of hismotion which was to suspend his future child support payments.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
Since the parties' divorce in February 2001, they have been involved in constant litigationsurrounding custody of their child, visitation rights of the noncustodial father, and theapportionment of costs and expenses. In a stipulation entered into between the parties datedSeptember 25, 2003, which was so-ordered by the Supreme Court in April 2004, the partiesagreed to joint custody of their daughter, born in 1996, with the defendant mother having primaryphysical custody and the plaintiff father having liberal unsupervised visitation. By motion datedJanuary 28, 2005, the mother moved to modify the stipulation so as to award her sole legal andphysical custody of the child. She also sought to suspend the father's visitation or, alternatively,to replace his unsupervised visitation with supervised visitation. In February 2005, the fathercross-moved to modify the stipulation so as to award him sole legal and physical custody of thechild. Thereafter, other motions were filed by the father and the attorney for the child involvingthe father's visitation. In 2008, the father moved, inter alia, for an immediate transfer of physicalcustody of the subject child from the mother to him, restoration of unsupervised visitation, andsuspension of future child support payments on the ground that the mother was interfering withhis visitation. The orders issued on those motions resulted in appeals and orders from this Court,among other things, remitting the matter to the Supreme Court for a hearing with respect to theissues raised by the aforesaid branches of the father's 2008 motion and the mother's motion datedJanuary 28, 2005, which were, inter alia, to suspend visitation (see Cervera v Bressler, 64 AD3d533 [2009]; Cervera v Bressler,50 AD3d 837 [2008]).[*2]
In 2009, the Supreme Court conducted a hearing asdirected. In an order entered July 29, 2010, the Supreme Court, inter alia, granted that branch ofthe mother's motion which was to modify the stipulation so as to award her sole legal andphysical custody of the child, directed that the father and the child initially attend unificationtherapy and, thereafter, supervised visitation with a therapist for a period of three months, anddenied that branch of the father's motion which was to suspend his future child support payments.The father appeals. We affirm the order entered July 29, 2010, insofar as appealed from.
"[A] custody [and visitation] determination is a matter entrusted primarily to the discretion ofthe trial court which is in the most advantageous position to evaluate the testimony, character,and sincerity of the parties" (Santoro v Santoro, 224 AD2d 510, 511 [1996]; seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]). The trial court's determination should notbe disturbed unless it lacks a sound and substantial basis in the record (see Eschbach vEschbach, 56 NY2d at 173; Albert vAlbert, 60 AD3d 979 [2009]; Allain v Allain, 35 AD3d 513, 513-514 [2006]; Santoro vSantoro, 224 AD2d at 511).
"In determining whether a custody agreement should be modified, the paramount issuebefore the court is whether, under the totality of the circumstances, a modification of custody isin the best interests of the child" (Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]; seeTeuschler v Teuschler, 242 AD2d 289, 290 [1997]; Kuncman v Kuncman, 188AD2d 517 [1992]). Here, the Supreme Court "properly concluded that an award of sole custodyto one parent, rather than joint custody to both parents, was in the best interests of the child giventhe level of acrimony between the parties and their inability to function together in a mannernecessary for a joint arrangement" (Mohen v Mohen, 53 AD3d 471, 473 [2008]; see Pambianchi v Goldberg, 35 AD3d688, 689 [2006]; Granata v Granata, 289 AD2d 527, 528 [2001]).
"Along with the factors considered in any custody determination, the court must alsoconsider the stability and continuity afforded by maintaining the present arrangement" (Gonzalez v Gonzalez, 17 AD3d635, 636 [2005]). "When . . . there is no indication that a change of [physical]custody will result in significantly enhancing the child's welfare, it is generally considered in thechild's best interests not to disrupt his life" (Matter of Salvati v Salvati, 221 AD2d 541,543 [1995]; see Matter of Russell vRussell, 72 AD3d 973, 974-975 [2010]).
Here, the parties' child had been living with her mother for eight years, since the age of four;the evidence established that she was well cared for and thriving under her mother's care, and thatshe preferred "not [to] be uprooted from her current home, school, friends and activities and thatshe wishes to continue residing with the [mother]." Moreover, there was no evidence that thefather was a more fit parent or that he would be "able to provide a better home environment orbetter care for the child" (Matter of Salvati v Salvati, 221 AD2d at 543; see Matter of Fallarino v Ayala, 41AD3d 714, 715 [2007]; Gonzalez v Gonzalez, 17 AD3d at 636). Under thesecircumstances, although there was evidence, and the Supreme Court concluded, that there hadbeen interference with visitation by the mother, her uncooperative behavior "was not sufficient tojustify a change of custody" (Matter of Fallarino v Ayala, 41 AD3d at 715). Rather, theevidence indicates that it was in the best interests of the child, who has been with the mothersince she was four years old, to remain with the mother, who is not an unfit parent (see Matterof Russell v Russell, 72 AD3d at 975; Matter of Fallarino v Ayala, 41 AD3d at 715).Thus, the court's custody determination has a sound and substantial basis in the record.
As to visitation, the Supreme Court noted that "[the child] has not seen the plaintiff [father]regularly in years, and . . . she no longer trusts him." This conclusion, supported bysubstantial evidence in the record, including the testimony of the therapists and the fatherhimself, as well as the child's statements to the court during an in camera interview, warrantedthe court's determination that a change from the unsupervised visitation provided in the thenexisting so-ordered stipulation was necessary to insure the child's best interests.
"[A] noncustodial parent should have reasonable rights of visitation, and the denial of thoserights to a natural parent is a drastic remedy which should only be invoked when there issubstantial evidence that visitation would be detrimental to the child" (Matter of Mera vRodriguez, [*3]73 AD3d 1069, 1069 [2010] [internalquotation marks omitted]; see Matter ofSinnott-Turner v Kolba, 60 AD3d 774, 775 [2009]; Matter of Grisanti v Grisanti, 4 AD3d 471, 473 [2004]). " 'Whilenot determinative, the child's expressed preference is some indication of what is in the child'sbest interests,' " provided that the court consider " 'the age and maturity of the child and thepotential for influence having been exerted on the child' " (Matter of Schouten vSchouten, 155 AD2d 461, 463 [1989], quoting Eschbach v Eschbach, 56 NY2d at173).
Here, there was substantial evidence that unsupervised visitation in a nontherapeutic settingwould be detrimental to the child. The Supreme Court heard testimony from the child's threetherapists, who treated her over a period of more than 10 years. All testified to the child's fear anddislike of the father's wife and her loss of trust with regard to the father. As the court correctlynoted in the order appealed from, "none of the mental health experts disagreed with the need forsome form of supervised or therapeutic visitation initially to re-establish the broken relationshipbetween [the child] and her father." All agreed that unsupervised visitation at this time would notbe a good idea, "because of [the child's] level of distress and discomfort." Moreover, theSupreme Court noted that the child herself clearly expressed to the court that she would not agreeto visitation except in a supervised setting. Under these circumstances, the Supreme Court'sdetermination that visitation supervised by a therapist would be in the best interests of the childhas a sound and substantial basis in the record and should not be disturbed (see Matter ofSinnott-Turner v Kolba, 60 AD3d at 776; Matter of Thompson v Yu-Thompson, 41 AD3d 487, 488 [2007]).
Contrary to the father's contention, the Supreme Court's finding that the father had "failed tosustain his burden of proving that [the mother's] actions rose to the higher standard of activeinterference or deliberate frustration of [the father's] visitation rights which would warrant thesuspension or termination of his support payments" is also supported by sound and sufficientevidence in the record (see Ledgin vLedgin, 36 AD3d 669, 670 [2007]; cf. Matter of Lew v Sobel, 46 AD3d 893, 895 [2007]).
The father's remaining contentions are without merit. Dillon, J.P., Angiolillo, Florio andDickerson, JJ., concur.