Opinion
555 CAF 18–00418
06-07-2019
In the Matter of APRIL L.S., ON BEHALF OF CHASE F., Petitioner–Respondent, v. JOSHUA F., Respondent–Appellant. (Appeal No. 1.)
DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT. MICHAEL G. CIANFARANO, OSWEGO, FOR PETITIONER–RESPONDENT. WALTER J. BURKARD, MANLIUS, ATTORNEY FOR THE CHILD.
DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT–APPELLANT.
MICHAEL G. CIANFARANO, OSWEGO, FOR PETITIONER–RESPONDENT.
WALTER J. BURKARD, MANLIUS, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In appeal No. 1, respondent father appeals from an order of protection directing him to stay away from the subject child, except for periods of court-ordered supervised visitation, for a period of five years. In appeal No. 3, the father appeals from an order that, inter alia, granted petitioner mother's custody petition by awarding her sole legal and physical custody of the child with one hour of supervised visitation biweekly to the father. We affirm in both appeals.
Contrary to the father's contention in appeal No. 1, Family Court did not err in issuing an order of protection with a duration of five years based upon its finding of "aggravating circumstances" arising from the father's repeated violation of a prior order of protection ( Family Ct Act § 842 ; see § 827[a][vii]; Matter of White v. Byrd–McGuire , 163 A.D.3d 1413, 1414, 81 N.Y.S.3d 692 [4th Dept. 2018] ).
We reject the father's contention in appeal No. 3 that the court erred in limiting the father's visitation to one hour every other week. It is well settled that "visitation issues are determined based on the best interests of the child[ ] ... and ... trial courts have broad discretion in fashioning a visitation schedule" ( D'Ambra v. D'Ambra [appeal No. 2], 94 A.D.3d 1532, 1534, 943 N.Y.S.2d 698 [4th Dept. 2012] [internal quotation marks omitted]; see Matter of Terramiggi v. Tarolli , 151 A.D.3d 1670, 1672, 56 N.Y.S.3d 721 [4th Dept. 2017] ). Furthermore, "a court's determination regarding ... visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record" ( Matter of Guillermo v. Agramonte , 137 A.D.3d 1767, 1769, 29 N.Y.S.3d 720 [4th Dept. 2016] [internal quotation marks omitted] ). In making that determination, and "in providing for visitation that will be meaningful, the frequency, regularity[,] and quality of the visits must be considered [and] [e]xpanded visitation is generally favorable absent proof that such visitation is inimical to a child's welfare" ( Matter of Fish v. Fish , 112 A.D.3d 1161, 1162, 976 N.Y.S.2d 727 [3d Dept. 2013] [internal quotation marks omitted]; see Matter of Nathaniel T. , 97 A.D.2d 973, 974, 468 N.Y.S.2d 768 [4th Dept. 1983] ). Nevertheless, although "both the child[ ] and [a] noncustodial parent have a right to meaningful visitation" ( Fish , 112 A.D.3d at 1162, 976 N.Y.S.2d 727 ; see Matter of Tropea v. Tropea , 87 N.Y.2d 727, 738, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996] ; Szemansco v. Szemansco , 296 A.D.2d 686, 687, 744 N.Y.S.2d 773 [3d Dept. 2002] ), we conclude here that "there is a sound and substantial basis in the record to support the court's determination that it was in the child's best interests" to restrict the father's visitation ( Matter of Brewer v. Soles , 111 A.D.3d 1403, 1404, 975 N.Y.S.2d 299 [4th Dept. 2013] ; see Matter of Noble v. Gigon , 165 A.D.3d 1640, 1640–1641, 82 N.Y.S.3d 923 [4th Dept. 2018] ). The father further contends in appeal No. 3 that he was improperly denied visitation while incarcerated in state prison. Assuming, arguendo, that the father's contention is preserved for our review by his attorney's request for such visitation during closing arguments with respect to the mother's custody petition, that contention is moot inasmuch as the father is no longer incarcerated (see generally Matter of Ryan M.B. v. Mary R. , 43 A.D.3d 1304, 1304, 841 N.Y.S.2d 905 [4th Dept. 2007] ; Matter of Demetrius B. , 28 A.D.3d 1249, 1250, 813 N.Y.S.2d 611 [4th Dept. 2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 [2006] ).