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In Re Frances M v. Jorge M.

New York Supreme Court Appellate Division, First Department


October 2, 2012

IN RE FRANCES M., PETITIONER-APPELLANT,
v.
JORGE M., RESPONDENT-RESPONDENT.

Matter of Matter of Frances M v Jorge M.

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.

Decided on October 2, 2012

Mazzarelli, J.P., Sweeny, DeGrasse, Freedman, Richter, JJ.

Order, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about October 12, 2010, which, after a fact-finding hearing, awarded sole physical and legal custody of the subject child to respondent father with visitation to petitioner mother according to an attached order of visitation, unanimously modified, on the facts, to provide that petitioner have visitation on Mother's Day from 10:00 a.m. until 7:00 p.m., the child's birthday for a maximum of two hours from the close of school, or from 10:00 a.m. until 3:00 p.m. if school is not in session, and during the Thanksgiving holiday, in even numbered years, from the Wednesday before Thanksgiving at 5:30 p.m. until the Friday after Thanksgiving at 6:00 p.m., and otherwise affirmed, without costs.

The Referee's determination that the child's best interests would be served by awarding custody to respondent has a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Indeed, the evidence shows that respondent has provided a healthy, stable environment for the child and has provided for the child's needs since the child was paroled to him in 2000, after a finding of neglect against petitioner. By contrast, the evidence shows that petitioner suffers from emotional, physical, and financial issues that prevent her from putting the child's needs before her own. Based on the parties' acrimonious relationship, joint decision making is not in the child's best interests (see Reisler v Phillips, 298 AD2d 228, 229-230 [1st Dept 2002]).

We modify the visitation schedule to the extent indicated (see generally Matter of Blanchard v Blanchard, 304 AD2d 1048, 1050 [3d Dept 2003]).

We have considered petitioner's remaining contentions and find them unavailing.

The Decision and Order of this Court entered herein on June 5, 2012 is hereby recalled and vacated (see M-2959 decided simultaneously herewith).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 2, 2012

CLERK

20121002

© 1992-2012 VersusLaw Inc.



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