Opinion
2019–05063 Index No. 51776/18
07-29-2020
Eliyahu AMIRA, plaintiff, v. Lanit AMIRA, defendant-respondent; Ben Tzion A. (Anonymous), et al., nonparty-appellants.
Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter, Louise Feld, and Laura Diewald of counsel), attorney for the children, the nonparty-appellants.
Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter, Louise Feld, and Laura Diewald of counsel), attorney for the children, the nonparty-appellants.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action for a divorce and ancillary relief and related proceedings, inter alia, pursuant to Family Court Act article 8, the children appeal, by permission, from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated May 7, 2019. The order, insofar as appealed from, awarded the mother alternate weekend parental access with the children, to be supervised by the maternal grandparents. By decision and order on motion dated June 14, 2019, this Court granted the children's motion, inter alia, to stay enforcement of the order dated May 7, 2019, pending hearing and determination of the appeal.
ORDERED that the order dated May 7, 2019, is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County (IDV Part), for further proceedings consistent herewith; and it is further,
ORDERED that pending a new determination on the mother's parental access with the children, and the entry of an order thereafter, the parental access provisions as set forth in an order of the Supreme Court, Kings County (IDV Part), dated March 7, 2019, shall remain in effect.
The parties were married in 2012. They are the parents of two children, born in 2013 and 2015, respectively. In April 2018, the father commenced an action for a divorce and ancillary relief. Thereafter, both parties filed family offense petitions and petitions for custody of the children. In January 2019, the divorce action was transferred to the Integrated Domestic Violence (IDV) part of the Supreme Court to be heard with the family offense and custody proceedings.
In an order dated March 7, 2019, the Supreme Court awarded the father temporary custody of the children and awarded the mother supervised parental access to occur at a designated agency for a period of 45 minutes per week. Thereafter, in an order dated May 7, 2019, the court, inter alia, awarded the mother alternate weekend parental access with the children, to be supervised by the maternal grandparents. By decision and order on motion dated June 14, 2019, this Court granted the children's motion, inter alia, to stay enforcement of the order dated May 7, 2019, pending hearing and determination of the appeal.
"The paramount concern in any custody or [parental access] determination is the best interests of the child[ren], under the totality of the circumstances" ( Matter of Mendez v. Limas, 160 A.D.3d 866, 867, 74 N.Y.S.3d 334 ; see Matter of Daclin–Goyatton v. Cousins, 172 A.D.3d 1369, 99 N.Y.S.3d 659 ). A determination with respect to parental access, including whether it should be supervised, is within the sound discretion of the trial court (see Matter of Valentin v. Valentin, 176 A.D.3d 1083, 1084, 108 N.Y.S.3d 899 ). Supervised parental access is appropriately required only where it is established that unsupervised parental access would be detrimental to the child (see Matter of Gainza v. Gainza, 24 A.D.3d 551, 551, 808 N.Y.S.2d 296 ; see also Rosenberg v. Rosenberg, 44 A.D.3d 1022, 1024, 845 N.Y.S.2d 371 ). When exercising its discretion to designate a supervisor for parental access, the court must ensure that the children will receive appropriate and responsible supervision (see Matter of Carl KK. v. Michelle JJ., 162 A.D.3d 1273, 1275, 79 N.Y.S.3d 331 ; Matter of Taylor v. Fry, 47 A.D.3d 1130, 1132, 849 N.Y.S.2d 724 ; Matter of Anaya v. Hundley, 12 A.D.3d 594, 596, 785 N.Y.S.2d 479 ).
Here, the Supreme Court improvidently exercised its discretion in awarding the mother alternate weekend parental access with the children, to be supervised by the maternal grandparents. The court did not adequately ascertain whether the maternal grandparents were able and willing to supervise the mother's expanded parental access with the children during alternate weekends (see Matter of Anaya v. Hundley, 12 A.D.3d at 595–596, 785 N.Y.S.2d 479 ). The court failed to ensure that the children will receive appropriate and responsible supervision by the maternal grandparents during the parental access with the mother (see id. at 596, 785 N.Y.S.2d 479 ). Accordingly, this matter must be remitted to the Supreme Court, Kings County (IDV Part), for a new determination on the mother's parental access with the children, consistent with the children's best interests, and the entry of an order thereafter.
RIVERA, J.P., LEVENTHAL, HINDS–RADIX and CHRISTOPHER, JJ., concur.