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Pena v. Pena

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 15, 2009

IN THE MATTER OF ROSA M. PENA, RESPONDENT,
v.
PEDRO PENA, APPELLANT. (PROCEEDING NO. 1)
IN THE MATTER OF PEDRO PENA, APPELLANT,
v.
ROSA M. PENA, RESPONDENT. (PROCEEDING NO. 2)

In related child custody and visitation proceedings pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Morgenstern, J.) (IDV Part), dated September 9, 2008, as, after a hearing, denied that branch of his motion which was for certain visitation rights and, in effect, denied that branch of his motion which was to compel the mother to provide him with necessary medical information concerning the subject child.

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.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL and PLUMMER E. LOTT, JJ.

(Docket Nos. V-01024-07, V-01026-07)

DECISION & ORDER

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof, in effect, denying that branch of the father's motion which was to compel the mother to provide the father with necessary medical information concerning the child, and substituting therefor a provision granting that branch of the father's motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.

In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167; Matter of Chow v Holmes, 63 AD3d 925, 925), which requires an evaluation of the "totality of [the] circumstances" (Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see Matter of Chow v Holmes, 63 AD3d at 925-926). Here, contrary to the Supreme Court's determination, in light of the liberal visitation granted to the father, it is in the child's best interests that the mother be required to furnish the father with necessary medical information concerning the child. However, in light of the particular circumstances of this case, involving allegations of the mother being abused by the father and the issuance of an order of protection against the father, the mother should not be required to disclose any information to the father which could compromise her confidentiality. Accordingly, we remit the matter to the Supreme Court, Kings County, for the entry of an appropriate order reflecting these considerations.

Contrary to the father's contention, there is a sound and substantial basis in the record for the Supreme Court's denial of his request for certain additional visitation rights (see Bluemer v Bluemer, 47 AD3d 652, 653).

RIVERA, J.P., DICKERSON, HALL and LOTT, JJ., concur.

20091215

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