Opinion
July 11, 1996
Appeal from the Family Court of Schenectady County (Reilly, Jr., J.).
The parties are the parents of a child born in 1989. Their 1992 judgment of divorce by Supreme Court incorporated by reference a 1991 order of Family Court which, pursuant to stipulation by and between these parties, provided that custody of the child would be with respondent and that petitioner would exercise "temporary rights of visitation, upon the agreement of the parties". By petition dated November 4, 1992, petitioner requested Family Court to modify Supreme Court's judgment since they were unable to agree on a reasonable visitation schedule.
Petitioner specifically requested alternate holidays, alternate weekend visitation, alternating of the child's birthday, one month in the summer and an order prohibiting respondent from removing the child from the State without his permission.
From August 1993 until April 1994, a fact-finding hearing was conducted to address the issue of visitation. While such scheduling is never a preferred course, in this instance it aided petitioner since Family Court granted him temporary supervised visitation during the pendency of the case, gradually lessening the restrictions. The evidence ultimately revealed that petitioner had long-standing personality disturbances, combined with the capacity for impulsive behavior and substance abuse for which he was currently in treatment. Notwithstanding this background, as well as the Probation Department's recommendation of supervised visitation, Family Court, considering the testimony of witnesses and petitioner's regular and consistent exercise of visitation without incident over the last 12 months, ordered, inter alia, unsupervised daytime visitation. Petitioner now appeals, contending that the award of daytime visitation was overly restrictive and not supported by the weight of the evidence. We disagree.
It is well settled that in determining the best interest of a child, a court must review the totality of the circumstances ( see, Eschbach v. Eschbach, 56 N.Y.2d 167; Friederwitzer v Friederwitzer, 55 N.Y.2d 89), fully recognizing "how valuable the mature guiding hand and love of a second parent is to a child" ( Matter of Stewart v. Stewart, 222 A.D.2d 895). Deference is traditionally given to the findings of fact made by Family Court since it is accorded the unique opportunity to assess the credibility of the witnesses before it ( see, Eschbach v Eschbach, supra; Matter of Powers v. Powers, 201 A.D.2d 838). These findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record ( see, Matter of Daniel R. v Noel R., 195 A.D.2d 704; Matter of Young v. Hasselman, 188 A.D.2d 891; Matter of Gitchell v. Gitchell, 165 A.D.2d 890). Upon our full review, we conclude that there was a sufficient basis for Family Court to impose the daytime restriction on visitation ( cf., Matter of Stewart v. Stewart, supra).
Cardona, P.J., Mercure, White and Casey, JJ., concur. Ordered that the order is affirmed, without costs.