Opinion
7129
09-25-2018
IN RE DON B., Petitioner–Appellant, v. CAMILLA E., Respondent–Respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Kenneth M. Tuccillo, Hastings on Hudson, for respondent. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the children.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the children.
Acosta, P.J., Sweeny, Manzanet–Daniels, Gesmer, Singh, JJ.
Order, Family Court, New York County (Tamara Schwartz, Referee), entered on or about July 12, 2017, which, to the extent appealed from as limited by the briefs, granted petitioner telephone contact and bimonthly visitation with the subject children, unanimously affirmed, without costs.
The determination that it was in the children's best interest to award petitioner bimonthly visitation, telephone communication, and further parenting time if either child desires it, has a sound and substantial basis in the record (see Matter of Michael Evan W. v. Pamela Lyn B. , 152 A.D.3d 414, 414, 58 N.Y.S.3d 45 [1st Dept. 2017], lv denied 30 N.Y.3d 910, 2018 WL 414743 [2018] ; Matter of Jamel W. [Stacey J.] , 145 A.D.3d 433, 433, 41 N.Y.S.3d 699 [1st Dept. 2016] ; Nimkoff v. Nimkoff , 18 A.D.3d 344, 347, 797 N.Y.S.2d 3 [1st Dept. 2005). While petitioner contends that respondent has influenced the children to avoid communication with him, it is apparent that other factors may have triggered the children's silent behavior, including petitioner's lack of communication or contact with them for more than three years.
In order to determine visitation based on the best interest of the children, the Family Court, prior to making its determination, considered the testimony of the parties and the children's wishes (see Matter of Harry S. v. Olivia S.A. , 143 A.D.3d 531, 532, 39 N.Y.S.3d 24 [1st Dept. 2016], lv denied 28 N.Y.3d 910, 2016 WL 7236816 [2016] ). The court also considered respondent's consent to encourage phone communication and further visitations with petitioner (see Matter of Ian C. v. Desery C. , 161 A.D.3d 621, 622, 77 N.Y.S.3d 388 [1st Dept. 2018] ).
Accordingly, we find no reason to disturb the Family Court's determination (see Matter of Louise E.S. v. W. Stephen S. , 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985] ; Matter of Calvin B. v. Tikema M. , 161 A.D.3d 521, 521–522, 73 N.Y.S.3d 746 [1st Dept. 2018] ).
We have considered the parties' remaining arguments and find them unavailing.