Rodriguez-Donaghy v. Donaghy

• Decision Date: 27 April 2016
• Citation: 138 A.D.3d 1123,28 N.Y.S.3d 907 (Mem)
• Parties: In the Matter of Celinda RODRIGUEZ–DONAGHY, petitioner-respondent, v. Douglas DONAGHY, respondent-respondent; Douglas M.D. (Anonymous), nonparty-appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1123

28 N.Y.S.3d 907 (Mem)

In the Matter of Celinda RODRIGUEZ–DONAGHY, petitioner-respondent,

v. Douglas DONAGHY, respondent-respondent;Douglas M.D. (Anonymous), nonparty-appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 27, 2016.

David J. Peck, Harrison, N.Y., attorney for the child, the nonparty-appellant Douglas M.D.

David M. Rosoff, White Plains, N.Y., for petitioner-respondent.

Robert G. Schneider, Yonkers, N.Y., for respondent-respondent.

Appeal from an order of the Family Court, Westchester County (Thomas R. Daly, J.), dated March 27, 2015. The order, insofar as appealed from, after a hearing, granted the mother's petition to modify the visitation provisions of a stipulation of settlement dated December 8, 2005, so as to extend her parenting time.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The parties executed a stipulation of settlement dated December 8, 2005, which was incorporated but not merged into a judgment of divorce dated May 8, 2006. The stipulation provided, inter alia, that the father would be the custodial parent of the parties' child and the mother would have parenting time. By amended petition dated July 27, 2011, the mother sought to modify the visitation provisions set forth in the stipulation so as to extend her parenting time. By order dated March 27, 2015, the Family Court granted the mother's petition. The nonparty child appeals.

When adjudicating visitation rights, the court's first concern is the best interests and welfare of the child. Visitation is a joint right of the noncustodial parent and the child (see Matter of Aguirre v. Romano, 73 A.D.3d 912, 914, 900 N.Y.S.2d 150

; Pollack v. Pollack, 56 A.D.3d 637, 638, 868 N.Y.S.2d 243 ; Cervera v. Bressler, 50 A.D.3d 837, 839, 855 N.Y.S.2d 658 ). The best interests of the child lie in being nurtured and guided by both parents (see Matter of Zwillman v. Kull, 90 A.D.3d 774, 775, 934 N.Y.S.2d 333 ). In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, visitation must be frequent and regular (id. at 775, 934 N.Y.S.2d 333 ). Absent extraordinary circumstances, such as where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges (see Pollack v. Pollack, 56 A.D.3d at 638, 868 N.Y.S.2d 243 ; Cervera v. Bressler, 50 A.D.3d at 839, 855 N.Y.S.2d 658 ).

Here, the Family Court providently exercised its discretion in granting the mother's petition to modify the visitation provisions set forth in ...