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In re Sarfati

Supreme Court of New York, Second Department

February 28, 2018

In the Matter of Joseph Sarfati, respondent-appellant,
v.
Christine DeJesus, appellant-respondent. (Proceeding No. 1) In the Matter of Christine DeJesus, appellant- respondent, Joseph Sarfati, respondent-appellant. (Proceeding No. 2)

          Heath J. Goldstein, Jamaica, NY, for appellant-respondent.

          Linda C. Braunsberg, Staten Island, NY, for respondent-appellant.

          Karen P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the children.

          JOHN M. LEVENTHAL, J.P. BETSY BARROS VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         Appeals 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 each month.

         ORDERED 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 disbursements.

         The 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.

         After a 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.

         The 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).

         "The 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).

         Here, 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.

         The 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 for the remaining visitation provisions that are challenged by the mother (see Matter of Frankiv v Kalitka, 105 A.D.3d 1045; Matter of Andrews v Mouzon, 80 A.D.3d 761, 763).

         Finally, the Family Court did not improvidently exercise its discretion in prohibiting the mother from relocating with the children beyond a ...


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