Summary
holding it would have been improper for court to change custody sua sponte where father requested only modification of visitation
Summary of this case from Hute v. Hute (In re Marriage of Hute)Opinion
2013-03-20
In the Matter of Vandy GRANT, appellant, v. Jackie TERRY, respondent (and related proceedings).
Judith Ellen Stone, Merrick, N.Y., for appellant. Arza Feldman, Uniondale, N.Y., for respondent.
Judith Ellen Stone, Merrick, N.Y., for appellant. Arza Feldman, Uniondale, N.Y., for respondent.
REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
In a proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County (LoPresti, Ct. Atty. Ref.), dated November 10, 2011, as, after a hearing, denied that branch of his petition which was to modify a prior order of the same court dated November 25, 2002, so as to award him unsupervised visitation.
ORDERED that the order dated November 10, 2011, is affirmed insofar as appealed from, without costs or disbursements.
In his petition, the father sought, inter alia, to modify a prior order dated November 25, 2002, so as to award him unsupervised visitation with the subject child, but he did not request custody of the child. The father's contention on appeal that the Family Court should have sua sponte modified the prior order so as to award him sole custody of the child is without merit. The father did not request such relief during the hearing and at no point did the Family Court indicate that a change in custody was an issue. Accordingly, it would have been improper for the Family Court to have modified the provision of the prior order regarding custody ( see Matter of Terry I. v. Barbara H., 69 A.D.3d 1146, 1149, 892 N.Y.S.2d 685;Matter of Adams v. Bracci, 61 A.D.3d 1065, 1067, 876 N.Y.S.2d 727;Matter of Penninipede v. Penninipede, 6 A.D.3d 445, 446, 775 N.Y.S.2d 329;Labanowski v. Labanowski, 4 A.D.3d 690, 695, 772 N.Y.S.2d 734;cf. Matter of Heintz v. Heintz, 28 A.D.3d 1154, 1155, 813 N.Y.S.2d 591).
Additionally, the Family Court properly denied that branch of the petition which was to modify a prior order of visitation dated November 25, 2002, so as to award the father unsupervised visitation. The determination of whether visitation should be supervised is a matter left to the Family Court's sound discretion, and its findings will not be disturbed on appeal unless they lack a sound and substantial basis in the record ( see Matter of Binong Xu v. Sullivan, 91 A.D.3d 771, 771–772, 936 N.Y.S.2d 569;Cervera v. Bressler, 50 A.D.3d 837, 839, 855 N.Y.S.2d 658;Matter of Rho v. Rho, 19 A.D.3d 605, 796 N.Y.S.2d 550). Here, given the totality of the circumstances, unsupervised visitation is not in the child's best interests ( see Matter of Bullinger v. Costa, 63 A.D.3d 735, 736, 880 N.Y.S.2d 336;Matter of Powell v. Blumenthal, 35 A.D.3d 615, 616–617, 827 N.Y.S.2d 187;Matter of Abranko v. Vargas, 26 A.D.3d 490, 491, 810 N.Y.S.2d 509).
The parties' remaining contentions are without merit.