Opinion
06-09-2017
In the Matter of Verion PIERCE, Sr., Petitioner–Respondent, v. Deborah J. PIERCE, Respondent–Appellant.
Frank H. Hiscock Legal Aid Society, Syracuse (Danielle K. Blackaby of Counsel), for Respondent–Appellant. Adorante, Turner & Assoc., Camillus (Anthony P. Adorante of Counsel), for Petitioner–Respondent. Stephanie N. Davis, Attorney for the Child, Oswego.
Frank H. Hiscock Legal Aid Society, Syracuse (Danielle K. Blackaby of Counsel), for Respondent–Appellant.
Adorante, Turner & Assoc., Camillus (Anthony P. Adorante of Counsel), for Petitioner–Respondent.
Stephanie N. Davis, Attorney for the Child, Oswego.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order modifying a prior custody and visitation order by awarding petitioner father primary physical custody of the subject child upon stipulation of the parties, and awarding the mother visitation with the child as the parties mutually agree, with the visitation to occur in Onondaga County. Contrary to the mother's contention, we conclude that there is a sound and substantial basis in the record supporting Family Court's determination that it is in the child's best interests to require that the mother's visitation occur in Onondaga County rather than to require that the child visit the mother in Florida, where the mother resides (see Matter of Brown v. Brown, 130 A.D.3d 923, 924, 12 N.Y.S.3d 898, lv. denied 26 N.Y.3d 916, 2016 WL 115999 ; Matter of Shangraw v. Shangraw, 61 A.D.3d 1302, 1304, 878 N.Y.S.2d 804 ). Although a child's wishes are not determinative, "[t]o the extent that the [court] relied upon the in camera interview of the then–13–year–old child, it was entitled to place great weight on the child's wishes, [inasmuch as she] was mature enough to express them" (Matter of Mohabir v.
Singh, 78 A.D.3d 1056, 1057, 910 N.Y.S.2d 917 ; see Matter of Coull v. Rottman, 131 A.D.3d 964, 965, 15 N.Y.S.3d 834, lv. denied 26 N.Y.3d 914, 2015 WL 8805681 ; Matter of VanDusen v. Riggs, 77 A.D.3d 1355, 1356, 908 N.Y.S.2d 303 ).
We further conclude that the court did not improperly delegate to the parties its authority to schedule visitation, and we thus reject the mother's contention that the matter should be remitted to the court to fashion a more specific visitation schedule (see Matter of Thomas v. Small, 142 A.D.3d 1345, 1345–1346, 38 N.Y.S.3d 461 ; Matter of Moore v. Kazacos, 89 A.D.3d 1546, 1547, 932 N.Y.S.2d 788, lv. denied 18 N.Y.3d 806, 2012 WL 446225 ). The record does not support the mother's contention that the arrangement is untenable under the circumstances here (see Matter of Alleyne v. Cochran, 119 A.D.3d 1100, 1102, 990 N.Y.S.2d 289 ; cf. Matter of Michael B. v. Dolores C., 113 A.D.3d 517, 518, 979 N.Y.S.2d 53 ). If the mother is unable to obtain visitation with the child "as the parties mutually agree," she may file a petition seeking to enforce or modify the order (see Thomas, 142 A.D.3d at 1346, 38 N.Y.S.3d 855; see generally Matter of Gelling v. McNabb, 126 A.D.3d 1487, 1487–1488, 6 N.Y.S.3d 887 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.