| Matter of Ross v Morrison |
| 2012 NY Slip Op 05825 [98 AD3d 515] |
| August 1, 2012 |
| Appellate Division, Second Department |
| In the Matter of O'Neil Ross, Appellant, v LovornMorrison, Respondent. |
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Melanie Marmer, Brooklyn, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Susan Cordaro and Janet Neustaetter of counsel),attorney for the children.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, Kings County(McElrath, J.), dated September 15, 2011, as, after a hearing, granted those branches of theseparate motions of the mother and the subject children which were to dismiss that branch of hispetition which sought to modify an order of custody and visitation on consent of the same courtdated February 4, 2008, so as to award him reasonable visitation with the subject children, anddismissed that portion of the proceeding.
Ordered that the order dated September 15, 2011, is reversed insofar as appealed from, on thefacts and in the exercise of discretion, with costs, those branches of the separate motions of themother and the attorney for the children which were to dismiss that branch of the father's petitionwhich sought to modify the order of the Family Court, Kings County, dated February 4, 2008, soas to award the father reasonable visitation are denied, that branch of the father's petition isreinstated and granted, and the matter is remitted to the Family Court, Kings County, to set avisitation schedule.
The subject children resided in California until the mother relocated with them to New York.In 2008, the mother filed a petition for sole legal and physical custody of the children. The father,who remained in California, submitted a sworn written response, wherein he consented to themother's custody of the children, who reportedly have special needs, but requested visitation. Anorder of custody and visitation on consent was thereafter issued by the Family Court on February4, 2008, awarding custody to the mother, and liberal but unspecified visitation to the father, "as[the] parties arrange and agree."
Two years later, the father commenced the instant proceeding by filing a petition requestingcustody of the children or, alternatively, reasonable visitation. A hearing was held and, at theclose of the father's case, the mother and the subject children moved to dismiss the petition. TheFamily Court granted the motions, and dismissed the proceeding in its entirety. On appeal, the[*2]father challenges the dismissal of that branch of his petitionwhich was for an award of reasonable visitation.
An existing visitation arrangement may be modified "upon a showing that there has been asubsequent 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]). Theparamount concern in any custody or visitation determination is the best interests of the child,under the totality of the circumstances (see Matter of Wilson v McGlinchey, 2 NY3d at380-381; Eschbach v Eschbach, 56 NY2d 167, 172 [1982]). The best interests of thechild generally lie in being nurtured and guided by both parents, and " 'in order for thenoncustodial parent to develop a meaningful, nurturing relationship with [his or] her child,visitation must be frequent and regular. Absent extraordinary circumstances, where visitationwould be detrimental to the child's well-being, a noncustodial parent has a right to reasonablevisitation privileges' " (Pollack vPollack, 56 AD3d 637, 638 [2008], quoting Twersky v Twersky, 103 AD2d 775,775-776 [1984]; see Matter of Zwillmanv Kull, 90 AD3d 774, 775 [2011]).
Here, the father testified at the hearing that the mother was preventing him from havingvisitation with the children by conditioning visitation on various demands, by stating that she didnot know his current wife, and by claiming that he would not return the children from Californiato New York. The father also testified that he and the mother currently do not communicateabsent exigent circumstances. In view of this evidence that the existing visitation arrangement,which was dependent on the cooperation of both parents, had become unworkable, the FamilyCourt's determination that the father had failed to make a prima facie showing of changedcircumstances warranting modification of the prior visitation order is not supported by therecord. Further, under the circumstances of this case, including the fact that the parents hadpreviously agreed that the father should enjoy liberal visitation, and the father's testimony that thechildren identified him as "Daddy" and told him that they loved him during numerous telephoneconversations, we find that modification of the prior order to provide for reasonable visitation isin the best interests of the children (see Matter of Zwillman v Kull, 90 AD3d at 775; Matter of Taylor v Taylor, 77 AD3d669 [2010]).
Accordingly, the matter must be remitted to the Family Court, Kings County, to set aschedule of visitation in accordance with the best interests of the children (see Matter of Bonthu v Bonthu, 67AD3d 906, 907 [2009]). The visitation schedule must provide for daytime visitation in NewYork on holidays, during school recesses, and during summer vacations, while reserving someholidays and summer vacation days for the mother, and progressing so as to allow for somedaytime visitation in California (seeMatter of Aguirre v Romano, 73 AD3d 912, 914 [2010]), provided that the children areaccompanied by the mother and the father pays for the children's airfare. The visitation scheduleshould also provide for reasonable telephone access that takes into consideration the father'swork schedule. Rivera, J.P., Florio, Eng and Cohen, JJ., concur.