Opinion
2012-11-16
In the Matter of Mary Elizabeth CARTER, Petitioner–Respondent, v. Landin L. WORK, Respondent–Respondent. Carolyn Kellogg Jonas, Esq., Attorney for the Child, Appellant.
Carolyn Kellogg Jonas, Attorney for the Child, Wellsville, Appellant pro se. Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Respondent–Respondent.
Carolyn Kellogg Jonas, Attorney for the Child, Wellsville, Appellant pro se. Carr Saglimben LLP, Olean (Jay D. Carr of Counsel), for Respondent–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, VALENTINO, AND MARTOCHE, JJ.
MEMORANDUM:
Petitioner mother commenced this proceeding seeking modification of a prior order of custody and visitation (prior order) by suspending all visitation between the child and respondent father. At the time the proceeding was commenced, Family Court issued an order to show cause suspending the father's visitation with the child, but the court later issued a temporary order reinstating visitation under certain conditions. After a hearing, the court denied the petition and reinstated visitation between the father and the child according to the schedule set forth in the prior order under certain conditions.
The Attorney for the Child (AFC) contends that the court erred in denying the petition and reinstating visitation between the father and the child. We reject that contention. It is well settled that visitation with the noncustodial parent is presumed to be in the child's best interests ( see Matter of Brown v. Erbstoesser, 85 A.D.3d 1497, 1499, 928 N.Y.S.2d 92), and that denial of visitation is justified only for a compelling reason ( see Matter of Swett v. Balcom, 64 A.D.3d 934, 935, 884 N.Y.S.2d 785,lv. denied13 N.Y.3d 710, 2009 WL 3427983). Here, we decline to disturb the decision of the court, which has a sound and substantial basis in the record ( see generally Matter of Nicole J.R. v. Jason M.R., 81 A.D.3d 1450, 1451, 917 N.Y.S.2d 495,lv. denied17 N.Y.3d 701, 2011 WL 2183839). Although the relationship between the father and the child is strained, there is nothing in the record establishing that visitation has been detrimental to the child ( see Brown, 85 A.D.3d at 1499, 928 N.Y.S.2d 92). To the contrary, the record supports the court's determination that visitation would be in the child's best interests and that resuming visitation offered the only hope of restoring the father-daughter relationship. In addition, the record suggests that the child's oppositionto visitation was the product, at least in part, of parental alienation by the mother ( see Matter of Bond v. MacLeod, 83 A.D.3d 1304, 1306, 921 N.Y.S.2d 671).
Finally, although we agree with the AFC that the court improperly disclosed the child's statement at the Lincoln hearing ( see Matter of Spencer v. Spencer, 85 A.D.3d 1244, 1246, 925 N.Y.S.2d 227), we conclude that the error does not justify disturbing an otherwise valid determination ( see Matter of Rivera v. LaSalle, 84 A.D.3d 1436, 1437, 923 N.Y.S.2d 254).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.