| Matter of Boggio v Boggio |
| 2012 NY Slip Op 04740 [96 AD3d 834] |
| June 13, 2012 |
| Appellate Division, Second Department |
| In the Matter of John Boggio, Appellant, v Susan Boggio,Respondent. (Proceeding No. 1.) In the Matter of Susan Boggio, Respondent, v John Boggio,Appellant. (Proceeding No. 2.) |
—[*1] Joan L. Beranbaum, New York, N.Y. (Karen A. Webber of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Karin Wolfe and Janet Neustaetter of counsel), attorneyfor the child.
In related visitation proceedings pursuant to Family Court Act article 6, the father appealsfrom an order of the Family Court, Kings County (Gruebel, J.), dated May 13, 2011, which, aftera hearing, denied his petition to modify the visitation provisions set forth in a stipulation ofsettlement dated February 13, 2001, which was incorporated but not merged into the parties'judgment of divorce dated August 20, 2001, and granted the mother's petition to modify thevisitation provisions to the extent of limiting his visitation and directing him to participate incounseling.
Ordered that the order is affirmed, with costs.
An existing visitation arrangement may be modified only "upon a showing that there hasbeen a subsequent change of circumstances and modification is required" (Family Ct Act §467 [b] [ii]; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381 [2004]; Galanti v Kraus, 85 AD3d 723,724 [2011]). The paramount concern in any custody or visitation determination is the bestinterests of the child, under the totality of the circumstances (see Matter of Wilson vMcGlinchey, 2 NY3d at 380-381; Eschbach v Eschbach, 56 NY2d 167, 172 [1982];Friederwitzer v Friederwitzer, 55 NY2d 89, 96 [1982]; Galanti v Kraus, 85 AD3dat 724). The determination of visitation issues is entrusted to the sound discretion of the FamilyCourt and will not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Crowder v Austin, 90AD3d 753, 754 [2011]; Matter ofMohabir v Singh, 78 AD3d 1056 [2010]).[*2]
Here, the Family Court's visitation determination issupported by a sound and substantial basis in the record. The father does not dispute that thebreakdown in his relationship with his then 11-year-old daughter and the temporary suspensionof visitation constituted a change of circumstances warranting modification of the visitationprovisions set forth in the parties' 2001 stipulation of settlement. Further, the record supports theFamily Court's determination that it would be in the best interests of the child for visitation toresume incrementally by permitting the father telephone contact three times per week, andweekly unsupervised visitation on Saturdays, which could expand to overnight visits withoutfurther court order upon the child's consent. The Family Court gave appropriate weight to thewishes expressed by the child during her in camera interview (see Matter of Mohabir vSingh, 78 AD3d at 1057; Matter ofMera v Rodriguez, 73 AD3d 1069 [2010]; Matter of Jennifer WW., 274 AD2d778, 779 [2000]; Matter of Lozada v Lozada, 270 AD2d 422 [2000]), without improperlybasing its visitation determination solely upon her wishes (cf. William-Torand v Torand, 73 AD3d 605, 606 [2010];Matter of Eric L. v Dorothy L., 130 AD2d 660, 661 [1987]). Contrary to the father'scontention, the modified visitation schedule does not tend to unnecessarily defeat his right tovisitation because it does not make visitation entirely dependent upon his daughter's consent(cf. William-Torand v Torand, 73 AD3d at 606; Matter of Kristine Z. v Anthony C., 21 AD3d 1319, 1321 [2005]).
Under the circumstances of this case, the Family Court also properly directed the father toparticipate in counseling as a component of the visitation determination (see Matter of Sinnott-Turner v Kolba,60 AD3d 774, 776 [2009]; Matterof Thompson v Yu-Thompson, 41 AD3d 487, 488 [2007]; Matter of Williams v O'Toole, 4 AD3d371, 372 [2004]). Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.