Opinion
2013-01-16
In the Matter of Dhaniram RAMBALI, appellant, v. Maureen RAMBALI, respondent.
Rhonda R. Weir, Brooklyn, N.Y., for appellant. Catherine S. Bridge, Staten Island, N.Y., attorney for the child.
Rhonda R. Weir, Brooklyn, N.Y., for appellant. Catherine S. Bridge, Staten Island, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, SANDRA L. SGROI, and SYLVIA HINDS–RADIX, JJ.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from (1) a decision of the Family Court, Queens County (McGrady, Ct.Atty.Ref.), dated January 27, 2012, made after a hearing, and (2) an order of the same court, also dated January 27, 2012, which, upon the decision, vacated so much of an order of the same court (Richroath, J.), dated December 11, 2002, as provided for visitation between the father and the child and, in effect, denied the father's petition, in effect, to modify the order dated December 11, 2002, to afford him visitation with the child in the correctional facility where the petitioner is housed.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision ( see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718); and it is further,
ORDERED that the order is affirmed, without costs or disbursements.
In 2002, the father and mother lived together with the subject child in Queens. After a disagreement in September or October 2002, the father left the home and moved into a different apartment. An order of the Family Court, Queens County (Richroath, J.), dated December 11, 2002, awarded custody of the child to the mother, and directed, inter alia, weekly visitation with the father. On December 29, 2002, when the mother arrived at the father's apartment to pick the child up from a visit, the father lured the mother into his apartment and then attacked her. After the father took the mother's keys and broke her cell phone with a hammer, he beat her, stripped her, tied her up, and raped her. The incident went on for approximately five or six hours. The then–10–month–old child was present for the entire incident. At one point, the father tied and duct-taped the mother to a chair and duct-taped the child to the mother's lap so that he could go out to buy more alcohol. While the father was out, the mother managed to free herself and the child, and escaped. As a result of this incident, the father was convicted of kidnapping in the second degree, assault in the third degree, and endangering the welfare of a child, and he was sentenced to 17 years imprisonment on the conviction of kidnapping in the second degree. This Court affirmed the judgment of conviction in 2006 ( see People v. Rambali, 27 A.D.3d 582, 813 N.Y.S.2d 103). The father has had no relationship with the child since December 2002, and had not attempted to contact the child for many years. The mother and child currently live in Florida, and the child is thriving. The father now seeks visitation with the child. He filed the instant petition in 2010, seeking, in effect, to modify the order dated December 11, 2002, directing custody and visitation to afford him visitation with the child in the correctional facility where he is housed. After a hearing, the Family Court vacated so much of the order dated December 11, 2002, as provided for visitation between the father and the child, in effect, denied the father's petition.
“A visitation order may be modified upon a showing of sufficient change in circumstances since the entry of the prior order such that modification is warranted to further the child's best interests” ( Matter of Balgley v. Cohen, 73 A.D.3d 1038, 1038, 900 N.Y.S.2d 659;see Matter of Peralta v. Irrizary, 91 A.D.3d 877, 879, 938 N.Y.S.2d 114;Matter of Shockome v. Shockome, 53 A.D.3d 618, 619, 862 N.Y.S.2d 378). “When making a determination with respect to visitation, the most important factor is the best interests of the child” ( Matter of Balgley v. Cohen, 73 A.D.3d at 1038, 900 N.Y.S.2d 659;see Matter of Sullivan v. Moore, 95 A.D.3d 1223, 1223, 944 N.Y.S.2d 641;Matter of Shockome v. Shockome, 53 A.D.3d at 619, 862 N.Y.S.2d 378). The best interests of the child are determined by an examination of the totality of the circumstances ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Because “custody and visitation determinations ‘necessarily depend [ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings' ” ( Matter of James M. v. Kevin M., 99 A.D.3d 911, 913, 952 N.Y.S.2d 257, quoting Matter of Elliott v. Felder, 69 A.D.3d 623, 623, 892 N.Y.S.2d 491). “Since ‘[a] noncustodial parent is entitled to meaningful visitation,’ the ‘denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child’ ” ( Matter of Balgley v. Cohen, 73 A.D.3d at 1038, 900 N.Y.S.2d 659, quoting Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 775, 875 N.Y.S.2d 512). However, “[t]he determination of visitation is within the sound discretion of the hearing court based upon the best interests of the child, and its determination will not be set aside unless it lacks a substantial basis in the record” ( Matter of Myers v. Anderson, 100 A.D.3d 906, 906, 954 N.Y.S.2d 204 [internal quotation marks omitted]; see Matter of Smith v. Smith, 92 A.D.3d 791, 792, 938 N.Y.S.2d 601;Matter of McLean v. Simpson, 82 A.D.3d 1101, 1101, 918 N.Y.S.2d 896;Matter of Kachelhofer v. Wasiak, 10 A.D.3d 366, 366, 780 N.Y.S.2d 290).
Here, substantial evidence in the record demonstrated that visitation with the father would be detrimental to the welfare of the child, and that visitation with the father is not in the child's best interests. Accordingly, the Family Court properly vacated so much of the order dated December 11, 2002, as provided for visitation between the father and the child and, in effect, denied the father's petition.