MATTER OF SHAW v. Antes

• Decision Date: 13 July 2000
• Citation: 274 A.D.2d 679,710 N.Y.S.2d 719
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of DARRELL SHAW, Appellant,<BR>v.<BR>JOANN ANTES, Respondent.

274 A.D.2d 679

710 N.Y.S.2d 719

In the Matter of DARRELL SHAW, Appellant,

v.JOANN ANTES, Respondent.

Decided July 13, 2000.

Mercure, Peters, Carpinello and Graffeo, JJ., concur.

Cardona, P. J.

Petitioner and respondent had a romantic relationship from March 1996 until mid-September 1996 during which time respondent became pregnant and gave birth in February 1997. Thereafter, the parties each petitioned for custody of their daughter and, on May 1, 1997, respondent was granted temporary custody. At the same time, petitioner's right to visitation was temporarily suspended. On June 12, 1997, Family Court issued a temporary order granting petitioner visitation at his mother's home but prohibited contact between the parties.

In September 1997, following petitioner's failure to comply with the terms of the visitation order, Family Court temporarily suspended petitioner's right to visitation pending a fact-finding hearing and a final determination concerning custody. Thereafter, petitioner moved, inter alia, for an order requiring that blood tests be performed to determine paternity of the child. As a result, Family Court issued an order in December 1997 granting sole custody of the child to respondent and dismissing petitioner's cross petition for custody. The order further provided that, once petitioner's paternity was established through an order of filiation or in the context of a support proceeding, he would have standing to again petition for custody or visitation.

In March 1998, petitioner commenced the instant proceeding seeking modification of Family Court's December 1997 order alleging a change in circumstances, namely, "[b]lood test show I'm the [f]ather". Respondent served an answer and cross-petitioned for an order directing that petitioner have no visitation. Family Court thereafter conducted a lengthy fact-finding hearing which concluded on September 18, 1998. In October 1998, the court issued an order, inter alia, awarding sole custody of the child to respondent and granting petitioner supervised visitation one Sunday each month commencing October 25, 1998. The order further set forth a graduated schedule of extended and, eventually, unsupervised visitation as long as petitioner did not violate the conditions set forth therein. Petitioner appeals from that order.^[*]

Initially, we note that the overriding concern in determining issues of custody and visitation is the best interest of the child (see, Eschbach v Eschbach, 56 NY2d 167, 173; Hanna v Hanna, 267 AD2d 903, 904, lv dismissed 94 NY2d 943). Family Court's findings with respect to such issues are entitled to considerable deference and will not be disturbed unless they lack a sound and substantial basis in the record (see, Hanna v Hanna, supra, at 904; Matter of Donahue v Buisch, 265 AD2d 601, 603; Matter of Jelenic v...