Rodriguez v. Silva

Decision Date08 October 2014
Docket Number2013-06128, Docket Nos. V-12329-11, V-08943-12.
Citation2014 N.Y. Slip Op. 06829,993 N.Y.S.2d 733,121 A.D.3d 794
PartiesIn the Matter of Michelle RODRIGUEZ, appellant, v. Alex Javier SILVA, respondent. (Proceeding No. 1) In the Matter of Alex J. Silva, respondent, v. Michelle Rodriguez, appellant. (Proceeding No. 2).
CourtNew York Supreme Court — Appellate Division

Steven Greenfield, West Hampton Dunes, N.Y., for appellant.

Deborah G. Fiss, Jackson Heights, N.Y. (Emily C. Walsh of counsel), for respondent.

Teresita Morales, Jamaica, N.Y., attorney for the child.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Opinion

In related child custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals, as limited by her notice of appeal and brief, from so much of an order of the Family Court, Queens County (Hunt, J.), dated June 6, 2013, as, after a hearing, awarded the father extended visitation with the parties' child during the father's vacation from employment, from the first Saturday of his vacation until Sunday of the following week, exercisable every six weeks, and directed that there are no geographical limitations on the father's visitation with the child.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Family Court, Queens County, for further proceedings in accordance herewith.

The parties are the unmarried parents of a daughter, born in March 2010, who is the subject of these proceedings. The mother lives in Bayside, New York, and the father lives in Alexandria, Virginia. When the parties were romantically involved, they spent most of their time together in Virginia. At some point, they planned to have the subject child and continued their relationship during the first year of the child's life in both New York and Virginia. Sometime thereafter, the relationship ended.

In June 2011, the mother filed a petition for sole custody of the child. Thereafter, the Family Court issued a series of temporary orders of visitation regarding the father's access to the child. In April 2012, the father filed his own custody petition, contending that the mother was uncooperative in allowing him to visit with the child. After a multi-day hearing in April 2013, the court awarded legal and primary physical custody of the child to the mother, and awarded the father visitation on alternate weekends and extended visitation during his vacation from employment, from the first Saturday of his vacation until the Sunday of the following week, with such extended visits not to be exercised more than once every six weeks unless otherwise agreed by the parties. The court directed that there are no geographical limitations on the father's visitation. The mother challenges so much of the order as awarded the father extended visitation during his vacations, and directed that there are no geographical limitations on his visitation.

The determination of visitation to a noncustodial parent is within the sound discretion of the hearing court, based upon the best interests of the child (see Matter of Herrera v. O'Neill, 20 A.D.3d 422, 423, 798 N.Y.S.2d 126 ; Matter of Kachelhofer v. Wasiak, 10 A.D.3d 366, 780 N.Y.S.2d 290 ; Jordan v. Jordan, 8 A.D.3d 444, 779 N.Y.S.2d 121 ). “Where, as here, the court has conducted a complete evidentiary hearing on the issues of custody and visitation, its findings must be accorded great weight, and its custody and visitation determination will not be disturbed unless it lacks a sound and substantial basis in the record” (Iacono v. Iacono, 117 A.D.3d 988, 988, 986 N.Y.S.2d 248 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). The hearing court's determination “depends to a great extent upon its assessment of the credibility of the witnesses and upon the assessments of the character, temperament, and sincerity of the parents” (Maloney v. Maloney, 208 A.D.2d 603, 603, 617 N.Y.S.2d 190 ).

‘The best interests of the child [generally] lie in his [or her] being nurtured and guided by both ... parents [and][i]n order for the noncustodial parent to develop a meaningful, nurturing relationship with [his or] her child, visitation must be frequent and regular. Absent extraordinary circumstances, where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges' (Pollack v. Pollack, 56 A.D.3d 637, 638, 868 N.Y.S.2d 243, quoting Twersky v. Twersky, 103 A.D.2d 775, 775–776, 477 N.Y.S.2d 409 ; see Matter of Ross v. Morrison, 98 A.D.3d 515, 517, 949 N.Y.S.2d 186 ; Matter of Zwillman v. Kull, 90 A.D.3d 774, 775, 934 N.Y.S.2d 333 ).

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