Opinion
63 CAF 21-00146
03-11-2022
In the Matter of Sacha M. SANTANA, Petitioner-Appellant, v. Richard W. BARNES, Respondent-Respondent.
TYSON BLUE, MACEDON, FOR PETITIONER-APPELLANT. CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT-RESPONDENT.
TYSON BLUE, MACEDON, FOR PETITIONER-APPELLANT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner mother appeals from an order that modified a prior order of custody and visitation by, inter alia, granting the mother sole custody of the subject child, granting respondent father visitation with the child, setting a visitation schedule, and restricting the father's girlfriend from being present when the parents exchange the child. The mother contends that Family Court erred in failing to prohibit the father's girlfriend from having any contact with the child. We reject that contention. "Family Court is afforded wide discretion in crafting an appropriate visitation schedule ... and has the power to impose restrictions on [a] child[ ]’s interactions with third parties during visitation if it is in the child[ ]’s best interests to do so" ( Matter of Chromczak v. Salek , 173 A.D.3d 1750, 1751-1752, 105 N.Y.S.3d 629 [4th Dept. 2019] [internal quotation marks omitted]). Here, the record establishes that there were verbal and physical altercations between the mother and the girlfriend during the exchanges of the child. However, there is no evidence in the record that the girlfriend had harmed or threatened the child. We thus conclude that the court's determination to restrict the girlfriend from the exchanges, but not to restrict her from all contact with the child, is supported by a sound and substantial basis in the record (cf. Matter of Tartaglia v. Tartaglia , 188 A.D.3d 1754, 1755-1756, 136 N.Y.S.3d 646 [4th Dept. 2020] ; see generally Matter of Allen v. Boswell , 149 A.D.3d 1528, 1529, 53 N.Y.S.3d 432 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653468 [2017] ).
We reject the mother's contention that the court erred in failing to appoint an attorney for the child (AFC). The determination whether to appoint an AFC in a custody and visitation proceeding is discretionary (see Family Ct Act § 249 [a] ; Richard D. v. Wendy P. , 47 N.Y.2d 943, 944-945, 419 N.Y.S.2d 949, 393 N.E.2d 1022 [1979] ; Lee v. Halayko , 187 A.D.2d 1001, 1002, 590 N.Y.S.2d 647 [4th Dept. 1992] ). Although a court may appoint an AFC on its own motion (see § 249 [a] ), we conclude that, given that the child was less than one year old at the time and thus would have been unable to express his wishes to an AFC, the court did not abuse its discretion in not appointing an AFC (see Matter of Keen v. Stephens , 114 A.D.3d 1029, 1032, 981 N.Y.S.2d 174 [3d Dept. 2014] ; Matter of Darcie T. v. Robert M.L. , 255 A.D.2d 955, 955, 680 N.Y.S.2d 782 [4th Dept. 1988] ; see also § 249 [a] ).