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Wormuth v. Mathis

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


January 8, 2009

IN THE MATTER OF LAUREN WORMUTH, APPELLANT,
v.
SARAH B. MATHIS, RESPONDENT.

The opinion of the court was delivered by: Kane, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: November 12, 2008

Before: Peters, J.P., Spain, Lahtinen, Kane and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Otsego County (Coccoma, J.), entered March 10, 2008, which partially granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

A 2006 Family Court order granted respondent (hereinafter the mother) sole custody of the parties' daughter (born in 2006) and granted petitioner (hereinafter the father) supervised visitation, with the mother acting as supervisor. The father filed a petition seeking to modify that order. After a hearing, the court modified the prior order by naming the Department of Social Services as supervisor of the father's weekly visits. On appeal, the father contests only the court's choice of supervisor, arguing that his brother and sister-in-law should have been appointed instead.

Family Court, having heard the testimony and observed the witnesses, did not abuse its discretion in requiring supervision by a child welfare agency as opposed to the father's relatives (see Matter of Taylor v Fry, 47 AD3d 1130, 1132 [2008]; see also Matter of Isaac Q., 53 AD3d 731, 731 [2008]). The credible evidence demonstrated that the father was convicted of sexual abuse in the first degree in 1997, leading to his classification as a level II sex offender. Further, the mother testified that during the time that she and the father cohabited, she found him naked in a bathtub with her other young daughter. The court reasonably concluded that, under the circumstances, the willingness of the father's proposed supervisors to leave him alone with their 10-year-old daughter renders them unsuitable as supervisors of petitioner's parenting time with his child. Because the record provides a sound and substantial basis for that determination, we affirm (see Matter of Abare v St. Louis, 51 AD3d 1069, 1070-1071 [2008]).

Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur.

ORDERED that the order is affirmed, without costs.

20090108

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