Opinion
2012-07-11
In the Matter of Susan M. BROWN, respondent, v. John J. BROWN, appellant. (Proceeding No. 1) In the Matter of John J. Brown, appellant, v. Susan M. Brown, respondent. (Proceeding No. 2).
Alexander Potruch, LLC, Garden City, N.Y., for appellant. Susan M. Brown, Williston Park, N.Y., respondent pro se.
Alexander Potruch, LLC, Garden City, N.Y., for appellant. Susan M. Brown, Williston Park, N.Y., respondent pro se.
Thomas E. Draycott, Brightwaters, N.Y., attorney for the child.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.
In related child custody and family offense proceedings pursuant to Family Court Act articles 6 and 8, the father appeals (1), as limited by his brief, from so much of an order of the Family Court, Nassau County (Singer, J.), dated August 9, 2010, as, after a hearing, granted the mother's petition for sole legal and physical custody of the subject children, reduced his visitation with the children by eliminating his previously scheduled visitation with the children on Mondays from the conclusion of school until 8:00 P.M. and awarding him visitation with the children only on Wednesdays from the conclusion of school until 8:00 P.M. and on alternate weekends from one hour after the conclusion of school on Friday until 8:00 P.M. on Sunday, granted the mother's family offense petition dated July 31, 2008, to the extent of finding that on August 8, 2007, and February 15, 2008, he committed acts against the mother constituting harassment in the second degree and disorderly conduct within the meaning of Family Court Act § 812, and denied his cross petition for custody of the children, and (2) from an order of the same court dated September 29, 2010, which denied his motion pursuant to CPLR 4404(b) to set aside so much of the order dated August 9, 2010, as reduced his visitation with the subject children by eliminating his previously scheduled visitation with the children on Mondays from the conclusion of school until 8:00 P.M. and awarding him visitation with the children only on Wednesdays from the conclusion of school until 8:00 P.M. and alternate weekends from one hour after the conclusion of school on Friday until 8:00 P.M. on Sunday.
ORDERED that the order dated August 9, 2010, is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof granting the mother's family offense petition dated July 31, 2008, to the extent of finding that on August 8, 2007, and February 15, 2008, the father committed acts against the mother constituting harassment in the second degree and disorderly conduct within the meaning of Family Court Act § 812, and substituting therefor a provision denying the mother's family offense petition dated July 31, 2008, and (2) by adding to the provision thereof awarding the father visitation with the subject children on Wednesdays from the conclusion of school until 8:00 P.M. and alternate weekends from one hour after the conclusion of school on Friday until 8:00 P.M. on Sunday, a provision awarding him visitation with the subject children on Mondays from the conclusion of school until 8:00 P.M.; as so modified, the order dated August 9, 2010, is affirmed insofar as appealed from, without costs or disbursements, and it is further,
ORDERED that the appeal from the order dated September 29, 2010, is dismissed as academic, without costs or disbursements.
The Family Court erred in granting the mother's family offense petition dated July 31, 2008, to the extent of finding that on August 8, 2007, and February 15, 2008, the father committed acts against the mother constituting harassment in the second degree and disorderly conduct within the meaning of Family Court Act § 812. The record does not support a determination that the father committed family offenses on those dates ( seeFamily Ct. Act § 812[1]; § 832; Matter of Taylor v. Taylor, 62 A.D.3d 1015, 1016, 881 N.Y.S.2d 440;Matter of Cavanaugh v. Madden, 298 A.D.2d 390, 392, 751 N.Y.S.2d 225).
“The essential consideration in any custody controversy is the best interests of the child” (Matter of McDonough v. McDonough, 73 A.D.3d 1067, 1068, 899 N.Y.S.2d 892 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Here, contrary to the father's contention, the Family Court's determination that an award of sole legal and physical custody to the mother was in the best interests of the subject children had a sound and substantial basis in the record ( see Matter of McDonough v. McDonough, 73 A.D.3d at 1068, 899 N.Y.S.2d 892). Joint custody was not feasible, since the parties failed to communicate and work together in parenting the children ( see Matter of Chery v. Richardson, 88 A.D.3d 788, 789, 930 N.Y.S.2d 663).
The Family Court must determine in its discretion what visitation will be in the child's best interests ( see Matter of Franklin v. Richey, 57 A.D.3d 663, 664, 869 N.Y.S.2d 187). Some form of visitation with the noncustodial parent will always be appropriate, absent exceptional circumstances (id.; see Matter of Mera v. Rodriguez, 73 A.D.3d 1069, 899 N.Y.S.2d 893). The Family Court's determination will not be set aside unless it lacks a substantial basis in the record ( see Matter of Wispe v. Leandry, 63 A.D.3d 853, 880 N.Y.S.2d 497;Matter of Franklin v. Richey, 57 A.D.3d at 664, 869 N.Y.S.2d 187). We agree with the father that the Family Court's elimination of his previously scheduled visitation with the children after school on Mondays is unsupported by the record. Consequently, we add a provision to the order dated August 9, 2010, awarding the father visitation with the children on Mondays from the conclusion of school until 8:00 P.M. ( see Matter of Solovay v. Solovay, 94 A.D.3d 898, 900, 941 N.Y.S.2d 712,lv. denied––– N.Y.3d ––––, 2012 N.Y. Slip Op. 77488 [U] [2012] [table; text at 2012 WL 2429241, 2012 N.Y. LEXIS 1879 (Ct.App.2012) ]; Matter of Nell v. Nell, 87 A.D.3d 541, 542–543, 928 N.Y.S.2d 312).
The father's appeal from the order dated September 29, 2010, has been rendered academic in light of our determination to add visitation on Mondays to the father's visitation schedule set forth in the order dated August 9, 2010 ( see Matter of Harris v. Magee, 77 A.D.3d 944, 909 N.Y.S.2d 548).
The father's remaining contentions are either without merit or not properly before this Court.