Cervera v. Bressler

• Decision Date: 15 April 2008
• Docket Number: 2007-09238.
• Citation: 50 A.D.3d 837,2008 NY Slip Op 03411,855 N.Y.S.2d 658
• Parties: FRANK CERVERA, Appellant, v. ROSSANNA BRESSLER, Respondent.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 837

855 N.Y.S.2d 658

2008 NY Slip Op 03411

FRANK CERVERA, Appellant, v. ROSSANNA BRESSLER, Respondent.

2007-09238.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 15, 2008.

In a matrimonial action in which the parties were divorced by

judgment dated February 21, 2001, the plaintiff appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Westchester County (Lubell, J.), entered September 18, 2007, which, inter alia, referred those branches of his motion which were for unmonitored telephone contact and unsupervised visitation with the parties' child to the trial court, and denied those branches of his motion which were for an award of an interim attorney's fee, to modify the apportionment of responsibility for payment of the forensic evaluator's fee, and to remove Joshua D. Siegel as the attorney for the child.

Ordered that on the Court's own motion, the notice of appeal from so much of the order as deferred until trial the issues of unmonitored telephone contact and unsupervised visitation is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law, the facts, and in the exercise of discretion (a) by deleting the first, second, third, and fourth decretal paragraphs thereof referring to the trial court those branches of the father's motion which were for unmonitored telephone contact and unsupervised visitation and substituting therefor a provision restoring conditional unmonitored telephone contact and unsupervised visitation, (b) by deleting the eighth and ninth decretal paragraphs thereof relating to an interim attorney's fee and forensic evaluator fees and substituting therefor a provision directing that a hearing be held to determine the parties' relative financial positions, and (c) by deleting the sixteenth decretal paragraph thereof denying that branch of the plaintiff's motion which was to remove Joshua D. Siegel as attorney for the child and substituting therefor a provision granting that branch of the plaintiff's motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith, including, inter alia, an immediate hearing on the issues of telephone contact and visitation, without an updated forensic report, the appointment of a new attorney for the child, and the setting of such conditions of unmonitored telephone contact and unsupervised visitation as the Supreme Court in its discretion may direct.

Since the parties' divorce in February 2001 they have been involved in constant litigation surrounding custody of their child and the visitation rights of the noncustodial father. On September 25, 2003, in open court, the parties entered into a stipulation, later so-ordered by the court, in which they agreed to joint custody, with primary physical custody with the mother, visitation to the father on alternate weekends and one weekday per week, and the removal of certain restrictions on visitation that had been imposed temporarily.

In July 2005 the attorney for the child, then known as the law guardian for the child, moved by order to show cause, signed by the court on July 28, 2005, for supervised visitation, based on various allegations by the mother, including one allegation of sexual molestation. The sexual molestation allegation was subsequently determined to be unfounded by the Office of Children and Family Services (hereinafter OCFS). Although a hearing on the motion of the attorney for the child was scheduled at least once, for some reason, not apparent in the record, it never took place, and visitation by the father has remained supervised since July 28, 2005.

"Visitation is a joint right of the noncustodial parent and of the child" (Weiss v Weiss, 52 NY2d 170, 175 [1981]; see Twersky v Twersky, 103 AD2d 775 [1984]), and "the best interests of a child lie in his being nurtured and guided by both of his natural parents" (Daghir v Daghir, 82 AD2d 191, 193 [1981], affd 56 NY2d 938 [1982]; see Matter of Gerald D. v Lucille S., 188 AD2d 650 [1992]). For a noncustodial parent to develop a meaningful, nurturing relationship with his or her child, "visitation must be frequent and regular" (Daghir v Daghir, 82 AD2d at 194, affd 56 NY2d 938 [1982]; see Matter of Graves v Smith, 264 AD2d 844 [1999]; Matter of Gerald D. v Lucille S., 188 AD2d at 650). "Absent extraordinary circumstances, where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges" (Twersky v Twersky, 103 AD2d at 775-776; see Matter of Brian M. v Nancy M., 227 AD2d 404 [1996]; Matter of Schack v Schack, 98 AD2d 802 [1983]).

"It is within the sound discretion of the court to determine whether visitation should be supervised" (Matter of Morgan v Sheevers, 259 AD2d 619, 620 [1999]; see Matter of Custer v Slater, 2 AD3d 1227, 1228 [2003]), and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Khan v Dolly, 39 AD3d 649, 651 [2007]; Matter of Kachelhofer v Wasiak, 10 AD3d 366 [2004]; Matter of Levande v Levande, 308 AD2d 450, 451 [2003]). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" (Matter of Gainza v Gainza, 24 AD3d 551 [2005]; see Rosenberg v Rosenberg, 44 AD3d 1022, 1024 [2007]; Purcell v Purcell, 5 AD3d 752, 753 [2004]).

Here, because no hearing was ever held on the order to show cause brought by the attorney for the child, signed by the court on July 28, 2005, visitation has remained supervised, and telephone contact between father and daughter has been monitored, for about 2½ years, based solely on the hearsay allegations of the mother. These consisted of the allegations of molestation, which were determined by OCFS to be unfounded, and stories of various incidents, the details of which were disputed by the father and, in any event, were insufficient to show that unsupervised visitation would be "detrimental to the child's well-being" (Matter of Graves v Smith, 264 AD2d at 845; see Purcell v Purcell, 5 AD3d at 752). Under these circumstances, it is unacceptable to this Court...