Opinion
2014-04916, Docket Nos. V-5701-08/13A, V-5702-08/13A, V-5703-08/13A, V-5704-08/13A.
04-08-2015
In the Matter of Gregory BLAZEK, appellant, v. Haley ZAVELO, respondent.
Richard Giacoma, Jamaica, N.Y., for appellant. Joseph H. Nivin, Jamaica, N.Y., for respondent. Kristine M. Marshall, Jamaica, N.Y., attorney for the children.
Richard Giacoma, Jamaica, N.Y., for appellant.
Joseph H. Nivin, Jamaica, N.Y., for respondent.
Kristine M. Marshall, Jamaica, N.Y., attorney for the children.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Opinion Appeal from stated portions of an order of the Family Court, Queens County (Craig Ramseur, Ct.Atty.Ref.), dated April 3, 2014. The order, after a hearing, inter alia, modified a prior order of custody and visitation so as to award the mother three weeks of summer visitation with the subject children.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by adding a provision thereto directing that the mother's three weeks of summer visitation with the children occur in the State of New York; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
A determination of visitation is within the sound discretion of the trial court, based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Sterling v. Silva, 124 A.D.3d 669, 1 N.Y.S.3d 327 ; Matter of Morgan v. Sheevers, 259 A.D.2d 619, 684 N.Y.S.2d 918 ). “Visitation is a joint right of the noncustodial parent and of the child” (Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377 ; see Cervera v. Bressler, 50 A.D.3d 837, 839, 855 N.Y.S.2d 658 ), and “the best interests of a child lie in his [or her] being nurtured and guided by both of his [or her] parents” (Daghir v. Daghir, 82 A.D.2d 191, 193, 441 N.Y.S.2d 494, affd. 56 N.Y.2d 938, 453 N.Y.S.2d 609, 439 N.E.2d 324 ; see Cervera v. Bressler, 50 A.D.3d at 839, 855 N.Y.S.2d 658 ; Matter of Gerald D. v. Lucille S., 188 A.D.2d 650, 591 N.Y.S.2d 528 ). “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 Rodriguez v. Silva, 121 A.D.3d 794, 795, 993 N.Y.S.2d 733 [internal quotation marks omitted]; see Pollack v. Pollack, 56 A.D.3d 637, 868 N.Y.S.2d 243 ; Twersky v. Twersky, 103 A.D.2d 775, 477 N.Y.S.2d 409 ). “Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child” (Irizarry v. Irizarry, 115 A.D.3d 913, 914, 982 N.Y.S.2d 581 ; see Matter of Bullinger v. Costa, 63 A.D.3d 735, 880 N.Y.S.2d 336 ; Rosenberg v. Rosenberg, 44 A.D.3d 1022, 845 N.Y.S.2d 371 ; Matter of Powell v. Blumenthal, 35 A.D.3d 615, 827 N.Y.S.2d 187 ).
Here, contrary to the contentions of the father and the attorney for the children, there is nothing in the record to warrant supervision of the mother's visitation with the subject children (see Irizarry v. Irizarry, 115 A.D.3d at 915, 982 N.Y.S.2d 581 ; Rosenberg v. Rosenberg, 44 A.D.3d at 1024, 845 N.Y.S.2d 371 ; cf. Matter of Colter v. Baker, 104 A.D.3d 850, 961 N.Y.S.2d 491 ; Matter of Bullinger v. Costa, 63 A.D.3d at 736, 880 N.Y.S.2d 336 ). While the children's preference and the position of the attorney for the children are factors to be considered and are entitled to some weight, they are not determinative and do not usurp the judgment of the trial judge (see Dintruff v. McGreevy, 34 N.Y.2d 887, 359 N.Y.S.2d 281, 316 N.E.2d 716 ; Matter of Shannon J. v. Aaron P., 111 A.D.3d 829, 831, 975 N.Y.S.2d 152 ; Baker v. Baker, 66 A.D.3d 722, 887 N.Y.S.2d 223 ).
However, under the circumstances of this case, the Family Court should have granted that branch of the father's petition which was to require the mother's three weeks of summer visitation to occur only in the State of New York (cf. Matter of Powell v. Blumenthal, 35 A.D.3d at 617, 827 N.Y.S.2d 187 ).