Opinion
2014-10-3
In the Matter of Susan TUTTLE, Petitioner–Appellant, v. Beth MATEO, Respondent–Respondent. (Appeal No. 3.).
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Petitioner–Appellant. Robert L. Gosper, Attorney for the Child, Canandaigua.
Davison Law Office PLLC, Canandaigua (Mary P. Davison of Counsel), for Petitioner–Appellant. Robert L. Gosper, Attorney for the Child, Canandaigua.
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, and DeJOSEPH, JJ.
MEMORANDUM:
In appeal No. 1, petitioner mother appeals from an order dismissing her petition against respondent stepmother alleging the violation of Family Court's temporary visitation order, and in appeal No. 2 she appeals from an amended order clarifying the court's order in appeal No. 1 by denying the stepmother's petition to terminate the mother's visitation with the subject child. In appeal No. 3, the mother appeals from a second amended order that further clarified the order in appeal No. 1 by denying that part of the stepmother's petition seeking to terminate the mother's telephonic visitation, but granting that part of the petition seeking to terminate the mother's physical visitation. We note at the outset that the mother's appeals from the order and amended order in appeal Nos. 1 and 2 must be dismissed inasmuch as those orders were superseded by the second amended order in appeal No. 3 ( see Matter of Eric D. [Appeal No. 1], 162 A.D.2d 1051, 1051, 559 N.Y.S.2d 156).
With respect to the second amended order in appeal No. 3, we reject the mother's contention that the stepmother failed to establish a change in circumstances since entry of the guardianship order to warrant reexamination of the visitation arrangement ( see Matter of Fox v. Fox, 93 A.D.3d 1224, 1224–1225, 940 N.Y.S.2d 719). The record establishes that, among other things, the relationship between the mother and the child had deteriorated significantly since entry of the order to the point that the child no longer wished to have visitation with the mother ( see Matter of Rulinsky v. West, 107 A.D.3d 1507, 1508, 969 N.Y.S.2d 268; Matter of Cole v. Nofri, 107 A.D.3d 1510, 1511, 967 N.Y.S.2d 552, appeal dismissed22 N.Y.3d 1083, 981 N.Y.S.2d 666, 4 N.E.3d 967; Matter of Susan LL. v. Victor LL., 88 A.D.3d 1116, 1117, 931 N.Y.S.2d 189).
We agree with the mother, however, that the court's suspension of her physical visitation with the child lacks a sound and substantial basis in the record ( see Fox, 93 A.D.3d at 1225, 940 N.Y.S.2d 719). Although “[v]isitation decisions are generally left to Family Court's sound discretion” (Matter of Lydia C. [Albert C.], 89 A.D.3d 1434, 1436, 933 N.Y.S.2d 147 [internal quotation marks omitted]; see Matter of Helles v. Helles, 87 A.D.3d 1273, 1274, 930 N.Y.S.2d 133), “[t]he denial of visitation to a noncustodial parent constitutes such a drastic remedy that it should be ordered only when there are compelling reasons, and there must be substantial evidence that such visitation is detrimental to the child[ ]'s welfare” (Vasile v. Vasile, 116 A.D.2d 1021, 1021, 498 N.Y.S.2d 635; see Matter of Diedrich v. Vandermallie, 90 A.D.3d 1511, 1511, 934 N.Y.S.2d 735; Matter of Frierson v. Goldston, 9 A.D.3d 612, 614, 779 N.Y.S.2d 670). “While the wishes of the child[ ] should be given consideration ..., ‘[v]isitation with a noncustodial parent is presumed to be in a child's best interests' ” and, in order to “overcome this strong presumption,” it must be established that “visitation would be detrimental to the child[ ]'s welfare” ( Matter of Brown v. Erbstoesser, 85 A.D.3d 1497, 1499, 928 N.Y.S.2d 92).
Here, the record lacks the requisite “substantial evidence” that visitation with the mother is detrimental to the child's welfare (Vasile, 116 A.D.2d at 1021, 498 N.Y.S.2d 635; see Diedrich, 90 A.D.3d at 1511, 934 N.Y.S.2d 735; Frierson, 9 A.D.3d at 614, 779 N.Y.S.2d 670). Although, as noted, the record establishes that the child no longer wished to see the mother, her wishes with respect to visitation are not determinative ( see Matter of Luke v. Luke, 90 A.D.3d 1179, 1181, 933 N.Y.S.2d 782; Matter of Bond v. MacLeod, 83 A.D.3d 1304, 1306, 921 N.Y.S.2d 671; Bubbins v. Bubbins, 136 A.D.2d 672, 672, 524 N.Y.S.2d 50). We therefore modify the second amended order in appeal No. 3 by vacating the directive terminating physical visitation between the mother and the child, and we remit the matter to Family Court to determine an appropriate visitation schedule, which may include supervised visitation ( see Matter of Cameron C., 283 A.D.2d 946, 947, 723 N.Y.S.2d 796, lv. denied97 N.Y.2d 606, 738 N.Y.S.2d 289, 764 N.E.2d 393). We have reviewed the mother's remaining contentions and conclude that they are without merit.
It is hereby ORDERED that the second amended order so appealed from is unanimously modified on the law by vacating the directive suspending petitioner's visitation and as modified the second amended order is affirmed without costs and the matter is remitted to Family Court, Ontario County, for further proceedings.