- December 12, 2017
Salvatore C. Adamo, New York, NY, for appellant.
Laurette Mulry, Central Islip, NY (John B. Belmonte of
counsel), attorney for the children.
C. BALKIN, J.P. JOHN M. LEVENTHAL SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
from an order of the Family Court, Suffolk County (Matthew
Hughes, J.), dated November 2, 2016. The order, after a
hearing, granted the mother's amended petition to modify
a so-ordered stipulation of the Supreme Court, Suffolk
County, dated August 6, 2012, to the extent of awarding her
therapeutic visitation with the subject children.
that the order is affirmed, without costs or disbursements.
children who are the subject of this proceeding were born in
2005 and 2007, respectively. Pursuant to a so-ordered
stipulation of the Supreme Court, Suffolk County, dated
August 6, 2012, the mother was granted at least 90 minutes
per week of unsupervised visitation with the subject children
as well as at least 10 hours per week of supervised
visitation. In 2013, upon the mother's conviction of
criminal contempt in the second degree, the Supreme Court,
Suffolk County, Integrated Domestic Violence Part, issued an
order of protection requiring the mother to stay away from
the subject children through 2018. The order of protection
was made subject to any custody or visitation order of the
Supreme Court or the Family Court.
amended petition filed in August 2015, the mother sought to
modify the so-ordered stipulation dated August 6, 2012, so as
to award her unsupervised visitation with the children as
well as nightly telephone calls with them. At a hearing held
on the amended petition, the mother testified that in 2015
she voluntarily entered an 11-month drug and alcohol
rehabilitation program, that after she successfully completed
that program she began participating in outpatient treatment
and counseling, and that she was currently residing in a
"sober housing" facility where she had consistently
tested negative on random drug tests. In addition, the mother
testified that she would be patient in seeking to reestablish
a relationship with her children. The mother's testimony
was supported by letters from two of her therapists, who
stated that the mother had successfully completed the
rehabilitation program, had consistently tested negative for
drugs and alcohol, and had readily participated in therapy.
After the hearing, the Family Court granted the mother's
amended petition to the extent of awarding her therapeutic
visitation with the children. The father appeals.
existing visitation order may be modified only "upon a
showing that there has been a subsequent change of
circumstances and modification is required" (Family Ct
Act § 467[b][ii]; see Matter of Boggio v
Boggio, 96 A.D.3d 834; Galanti v Kraus, 85
A.D.3d 723). The paramount concern in any visitation
determination is the best interests of the child, under the
totality of the circumstances (see Eschbach v.
Eschbach, 56 N.Y.2d 167; Friederwitzer v
Friederwitzer, 55 N.Y.2d 89;Matter of Skeete v
Hamilton, 78 A.D.3d 1187). The determination of
visitation is entrusted to the sound discretion of the Family
Court, and such determination will not be set aside unless it
lacks a sound and substantial basis in the record (see
Matter of Orellana v. Orellana, 112 A.D.3d 720;
Matter of Fulmer v. Buxenbaum, 109 A.D.3d 822;
Matter of Haimovici v. Haimovici, 73 A.D.3d 1058). A
noncustodial parent should have reasonable rights of
visitation, and the denial of those rights to a natural
parent is a drastic remedy which should only be invoked when
there is substantial evidence that visitation would be
detrimental to the child (see Cervera v Bressler, 90
A.D.3d 803; Matter of Lane v. Lane, 68 A.D.3d 995;
Matter of Sinnott-Turner v Kolba, 60 A.D.3d 774).
the determination of the Family Court that therapeutic
visitation between the mother and the children was in the
children's best interests has a sound and substantial
basis in the record (see Matter of Castagnola v.
Muller,105 A.D.3d 954; Matter of Thompson v.
Yu-Thompson,41 A.D.3d 487). Contrary to the
father's contention, the court did not fail to take the
children's wishes into account. Although a child's
views should be considered, they are not controlling (see
Matter of Ross v Ross,86 ...