- September 18, 2017
J. Goldstein, Jamaica, NY, for appellant-respondent.
C. Braunsberg, Staten Island, NY, for respondent-appellant.
P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet
Neustaetter of counsel), attorney for the children.
M. LEVENTHAL, J.P. BETSY BARROS VALERIE BRATHWAITE NELSON
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
by the mother and cross appeals by the father from stated
portions of (1) an order of the Family Court, Kings County
(Anthony Cannataro, J.), dated April 8, 2016, and (2) an
amended order of that court (Amanda White, J.) dated October
26, 2016. Both orders, after a hearing, inter alia, awarded
sole legal and physical custody of the parties' children
to the mother, restricted the mother's ability to
relocate with the children, and awarded the father visitation
with the children on the first, third, and fourth weekends of
that the appeal and cross appeal from the order dated April
8, 2016, are dismissed as academic, without costs or
disbursements, in light of our determination on the appeal
and cross appeal from the amended order dated October 26,
2016; and it is further, ORDERED that the amended order dated
October 26, 2016, is modified, on the law, (1) by adding
thereto a provision vacating the order dated April 8, 2016,
and (2) by deleting the provision thereof awarding the father
visitation with the children on the first, third, and fourth
weekends of each month, and substituting therefor a provision
awarding the father visitation with the children on alternate
weekends, from Friday after school until Sunday at 5:00 p.m.;
as so modified, the amended order is affirmed insofar as
appealed and cross-appealed from, without costs or
parties are the parents of two sons. The record supports a
finding by a preponderance of the evidence that the
parties' relationship was marked by a significant history
of domestic violence perpetrated by the father against the
mother. After a particularly egregious incident in 2009,
after which the mother fled with the children, the father
petitioned for sole custody of the children and the mother
cross-petitioned for the same relief.
hearing, the Family Court issued an order dated April 8,
2016, inter alia, awarding sole legal and physical custody of
the children to the mother and visitation to the father.
Thereafter, upon the motion of the attorney for the children
for resettlement, the court issued an amended order dated
October 26, 2016, which replaced the April 8, 2016, order and
modified certain aspects of visitation that are not relevant
to these appeals and cross appeals. The mother appeals and
the father cross-appeals from stated portions of the order
and the amended order.
father's contention that he should have been awarded sole
or joint custody is not properly before this Court, since he
consented to an award of sole custody to the mother at the
outset of the protracted hearing and did not renew or revive
a request for custody during the hearing (see Matter of
Ciara B. [Edward T.-Ala B.], 96 A.D.3d 833, 834;
Matter of Binong Xu v. Sullivan, 91 A.D.3d 771).
Further, the record demonstrates no basis for a new hearing
as to the issue of custody (see generally Eschbach v.
Eschbach, 56 N.Y.2d 167, 171).
determination of visitation to a noncustodial parent is
within the sound discretion of the hearing court, based upon
the best interests of the children, and it should not be set
aside unless it lacks a sound and substantial basis in the
record" (Matter of Dennis D. [Justesen], 83
A.D.3d 700, 702; see Matter of Sanders v. Jaco, 148
A.D.3d 812, 814; Matter of Herrera v. O'Neill,
20 A.D.3d 422, 423). "Visitation is a joint right of the
noncustodial parent and of the child" (Weiss v
Weiss, 52 N.Y.2d 170, 175). "Absent extraordinary
circumstances where visitation would be detrimental to the
child's well-being, a noncustodial parent has a right to
reasonable visitation privileges" (Matter of Brian
M. v. Nancy M., 227 A.D.2d 404, 404; see Matter of
Savage v. Morales, 147 A.D.3d 861, 861). At the same
time, a visitation schedule that "deprives the
[custodial parent] 'of any significant quality time'
with the children[ ] is . . . 'excessive'"
(Matter of Felty v. Felty, 108 A.D.3d 705, 708,
quoting Chamberlain v. Chamberlain, 24 A.D.3d 589,
593; see Matter of Rivera v. Fowler, 112 A.D.3d 835,
836; Cesario v. Cesario, 168 A.D.2d 911).
the visitation schedule awarding the father visitation with
the school-aged children three weekends per month was
excessive, as it effectively deprived the mother of any
significant quality time with the children (see Matter of
Patrick v. Farris, 39 A.D.3d 864, 865; see also
Matter of Razdan v. Mendoza-Pautrat, 137 A.D.3d 1149,
1150; Matter of Rivera v. Fowler, 112 A.D.3d at
836). Under the circumstances of this case, including the
mother's consent to alternate weekend visitation, we find
that it would be more appropriate to award the father
visitation on alternate weekends.
mother failed to demonstrate, based on this record, that it
would be detrimental to the well-being of the younger child
to visit with the father alone when the older child is not
available for visitation (see Matter of Rodriguez v.
Silva,121 A.D.3d 794, 795; Matter of Nancy M. v.
Brian M., 227 A.D.2d at 404). Moreover, there is a sound
and substantial basis in the record for the provisions of the
amended order permitting the father to spend certain
religious holidays with the children, outside of school hours
(see Matter of Waldron v. Dussek,48 A.D.3d 471,
472-473; cf. Mars v. Mars,286 A.D.2d 201, 203).
Further, there is a sound and substantial basis in the record