Opinion
2019–12700 Docket Nos. V–5318–18, V–3560–19
05-19-2021
In the Matter of Franchesca FERNANDEZ, respondent, v. Tanique HARRELL, appellant. (Proceeding No. 1) In the Matter of Tanique Harrell, appellant, v. Franchesca Fernandez, respondent. (Proceeding No. 2)
Susan A. DeNatale, Bayport, NY, for appellant. Abbe C. Shapiro, Mount Sinai, NY, for respondent. Thomas W. McNally, Huntington, NY, attorney for the child.
Susan A. DeNatale, Bayport, NY, for appellant.
Abbe C. Shapiro, Mount Sinai, NY, for respondent.
Thomas W. McNally, Huntington, NY, attorney for the child.
ROBERT J. MILLER, J.P., HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Heather P.S. James, Ct. Atty. Ref.), dated October 2, 2019. The order, insofar as appealed from, after a hearing, granted the father's petition, in effect, for parental access with the child only to the extent of awarding him supervised parental access with the child.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parties, who were never married, are the parents of a child, born in May 2017. In April 2018, the mother filed a petition seeking custody of the child. Upon the father's default, the Family Court issued an order awarding the mother sole custody of the child, omitting any provision awarding parental access to the father. The father then moved to vacate the default order and filed a petition seeking, in effect, parental access with the child. Following a hearing at which the court heard testimony from both parents, the court, among other things, granted the father's petition only to the extent of awarding him supervised parental access with the child. The father appeals.
"The paramount concern in any custody or [parental access] determination is the best interests of the child, under the totality of the circumstances" ( Agulnick v. Agulnick, 189 A.D.3d 956, 957, 136 N.Y.S.3d 326 [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 ; Reilly v. Hager–Reilly, 166 A.D.3d 825, 826, 88 N.Y.S.3d 83 ). "Absent exceptional circumstances, some form of [parental access] with the noncustodial parent is always appropriate" ( Matter of Burgess v. Burgess, 99 A.D.3d 797, 798, 951 N.Y.S.2d 893 [internal quotation marks omitted]; see Matter of Reilly v. Hager–Reilly, 166 A.D.3d at 826–827, 88 N.Y.S.3d 83 ). "However, supervised parental access is appropriate where it is established that unsupervised parental access would be detrimental to the child" ( Matter of Reilly v. Hager–Reilly, 166 A.D.3d at 827, 88 N.Y.S.3d 83 ; see Matter of Watson v. Maragh, 156 A.D.3d 801, 802, 67 N.Y.S.3d 42 ; Matter of Powell v. Blumenthal, 35 A.D.3d 615, 616, 827 N.Y.S.2d 187 ). Determinations related to custody and parental access depend to a great extent upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties (see Matter of Reilly v. Hager–Reilly, 166 A.D.3d at 827, 88 N.Y.S.3d 83 ). Accordingly, "[t]he determination of whether [parental access] should be supervised is a matter left to the court's sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record" ( Matter of Gooler v. Gooler, 107 A.D.3d 712, 713, 966 N.Y.S.2d 208 ; see Matter of Binong Xu v. Sullivan, 91 A.D.3d 771, 771–772, 936 N.Y.S.2d 569 ).
Here, the Family Court providently exercised its discretion in directing that the father's parental access with the child be supervised (see Matter of Colter v. Baker, 104 A.D.3d 850, 850, 961 N.Y.S.2d 491 ; Matter of Bullinger v. Costa, 63 A.D.3d 735, 735–736, 880 N.Y.S.2d 336 ; Matter of Anaya v. Hundley, 12 A.D.3d 594, 595, 785 N.Y.S.2d 479 ). Given the totality of the circumstances, the court properly determined that unsupervised parental access with the father at the present time would not be in the child's best interests (see Matter of Colter v. Baker, 104 A.D.3d at 850, 961 N.Y.S.2d 491 ; Matter of Bullinger v. Costa, 63 A.D.3d at 735–736, 880 N.Y.S.2d 336 ; Matter of Anaya v. Hundley, 12 A.D.3d at 595, 785 N.Y.S.2d 479 ).
MILLER, J.P., LASALLE, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.