Opinion
2013-12-18
In the Matter of Oswaldo RIVERA, respondent, v. Karen FOWLER, appellant.
Karen Fowler, Smithtown, N.Y., appellant pro se. John Fazzini, P.C., Huntington, N.Y., for respondent.
Karen Fowler, Smithtown, N.Y., appellant pro se.John Fazzini, P.C., Huntington, N.Y., for respondent.
Robert C. Mitchell, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the children.
PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.
In a child custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County (Budd, J.), dated January 13, 2012, as, after a hearing, awarded the father visitation with the children every weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m., and did not specify the period of her visitation with the children during their summer vacation.
ORDERED that the order is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof awarding the father visitation every weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m., and substituting therefor a provision awarding the father visitation every other weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m., and one overnight visit per week, and (2) by adding a provision thereto awarding the parties equal visitation time during the children's summer vacation; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for further proceedings consistent herewith; and it is further,
ORDERED that, pending determination of the new visitation schedule, the visitation provisions set forth in the order dated January 13, 2012, shall remain in effect.
An existing visitation arrangement may be modified “upon [a] showing ... that there has been a subsequent change of circumstances and that modification is required” (Family Ct. Act § 652[a]; see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380, 779 N.Y.S.2d 159, 811 N.E.2d 526). “Extraordinary circumstances are not a prerequisite to obtaining a modification; rather, the ‘standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered’ ” ( Matter of Wilson v. McGlinchey, 2 N.Y.3d at 381, 779 N.Y.S.2d 159, 811 N.E.2d 526, quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; see Matter of Krom v. Comerford, 57 N.Y.2d 704, 705, 454 N.Y.S.2d 701, 440 N.E.2d 786; Matter of Zwillman v. Kull, 90 A.D.3d 774, 775, 934 N.Y.S.2d 333; Matter of Tabares v. Tabares, 64 A.D.3d 661, 662, 883 N.Y.S.2d 123). “The best interests of the child generally lie in being nurtured and guided by both parents” ( Matter of Ross v. Morrison, 98 A.D.3d 515, 517, 949 N.Y.S.2d 186; see Matter of Zwillman v. Kull, 90 A.D.3d at 775, 934 N.Y.S.2d 333; Matter of Jules v. Corriette, 76 A.D.3d 1016, 1017, 908 N.Y.S.2d 89).
Here, the parties demonstrated that a change of circumstances had occurred and that modification of the existing visitation arrangement was in the children's best interests ( see Matter of Grunwald v. Grunwald, 108 A.D.3d 537, 968 N.Y.S.2d 575; Matter of Ross v. Morrison, 98 A.D.3d at 517, 949 N.Y.S.2d 186). The existing visitation arrangement did not specify the exact time and date that weekly and summer vacation visitations were to begin, which led to disagreement between the parties, thereby warranting modification of that arrangement ( see Matter of Grunwald v. Grunwald, 108 A.D.3d at 537, 968 N.Y.S.2d 575; Matter of Patsy M.C. v. Lorna W.C., 165 A.D.2d 813, 560 N.Y.S.2d 154).
However, the Family Court improvidently exercised its discretion in providing that the father have visitation every weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m. The extent to which the noncustodial parent may exercise parenting time is a matter committed to the sound discretion of the hearing court, to be determined on the basis of the best interests of the child ( see Bluemer v. Bluemer, 47 A.D.3d 652, 850 N.Y.S.2d 514; Matter of Kachelhofer v. Wasiak, 10 A.D.3d 366, 780 N.Y.S.2d 290; Matter of Levande v. Levande, 308 A.D.2d 450, 451, 764 N.Y.S.2d 123; Matter of Morash v. Minucci, 299 A.D.2d 486, 487, 749 N.Y.S.2d 889), consistent with the concurrent right of the child and the noncustodial parent to meaningful time together ( see Chamberlain v. Chamberlain, 24 A.D.3d 589, 808 N.Y.S.2d 352; Matter of Grossman v. Grossman, 5 A.D.3d 486, 487, 772 N.Y.S.2d 559; Matter of Ritz v. Otero, 265 A.D.2d 560, 697 N.Y.S.2d 123; Matter of Mackey v. Mackey, 265 A.D.2d 329, 696 N.Y.S.2d 695; Matter of Bradley v. Wright, 260 A.D.2d 477, 686 N.Y.S.2d 327). A visitation schedule that deprives the custodial parent of “any significant quality time” with the child is, however, excessive ( Matter of Felty v. Felty, 108 A.D.3d 705, 708, 969 N.Y.S.2d 557 [internal quotation marks omitted]; Chamberlain v. Chamberlain, 24 A.D.3d at 593, 808 N.Y.S.2d 352 [internal quotation marks omitted]; Cesario v. Cesario, 168 A.D.2d 911, 911, 565 N.Y.S.2d 653 [internal quotation marks omitted] ). Here, the schedule established by the Family Court effectively deprived the mother of any significant quality time with the children during each weekend. Moreover, the Family Court improvidently exercised its discretion in failing to specify the period of the mother's visitation with the children during their summer vacation. In the circumstances presented, a more appropriate schedule, consistent with the parental rights and responsibilities of both parties, and the best interests of the children, should provide that the noncustodial father have visitation every other weekend, beginning Saturday at noon and ending Sunday at 8:00 p.m., and one overnight visit per week, and that the parties should have equal visitation time during the children's summer vacation. Accordingly, we remit the matter to the Family Court, Suffolk County, to set forth a new visitation schedule consistent herewith.
Contrary to the mother's contention, the attorney for the children took an active role in the proceeding and accorded the children effective assistance of counsel ( see Matter of West v. Turner, 38 A.D.3d 673, 674, 832 N.Y.S.2d 78; Matter of Brittany W., 25 A.D.3d 560, 806 N.Y.S.2d 426; Matter of Dewey S., 175 A.D.2d 920, 920–921, 573 N.Y.S.2d 769; cf. Matter of Jamie TT., 191 A.D.2d 132, 137, 599 N.Y.S.2d 892; Koppenhoefer v. Koppenhoefer, 159 A.D.2d 113, 117, 558 N.Y.S.2d 596).
The Family Court providently exercised its discretion in denying the mother's request to proceed pro se because her request was not unequivocal ( see Matter of Kathleen K. [ Steven K.], 17 N.Y.3d 380, 386–387, 929 N.Y.S.2d 535, 953 N.E.2d 773; People v. White, 60 A.D.3d 877, 878, 875 N.Y.S.2d 551).