        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

316
CAF 10-00836
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.


IN THE MATTER OF JAMES M. FOX,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ELAINE H. FOX, RESPONDENT-APPELLANT.
(APPEAL NO. 2.)


SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-APPELLANT.

SUSAN GRAY JONES, CANANDAIGUA, FOR PETITIONER-RESPONDENT.

M. KATHLEEN CURRAN, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR SARA F.


     Appeal from an order of the Family Court, Ontario County (William
F. Kocher, J.), entered March 22, 2010 in a proceeding pursuant to
Family Court Act article 6. The order granted sole legal and physical
custody of the parties’ child to petitioner and suspended the
visitation of respondent.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the directive suspending
respondent’s visitation with the child and as modified the order is
affirmed without costs and the matter is remitted to Family Court,
Ontario County, for further proceedings in accordance with the
following Memorandum: In appeal No. 1, respondent mother appeals from
an order granting petitioner father’s motion to dismiss her petition
for modification of the existing custody order with respect to custody
and visitation (consent order) by awarding sole legal and physical
custody of the parties’ child to the father and suspending the
mother’s overnight visitation. In appeal No. 2, the mother appeals
from an order granting the father’s violation petition and the relief
sought in his order to show cause by awarding sole legal and physical
custody of the child to the father and suspending the mother’s
visitation with the child in its entirety. We note at the outset that
the mother’s appeal from the order in appeal No. 1 must be dismissed
inasmuch as that order was superseded by the order in appeal No. 2
(see generally Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d
985). Indeed, Family Court issued the order in appeal No. 2 following
the continuation of the hearing upon which the order in appeal No. 1
was based.

     With respect to the order in appeal No. 2, we reject the mother’s
contention that the father failed to establish a change in
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                                                         CAF 10-00836

circumstances since entry of the consent order to warrant
reexamination of the visitation arrangement (see Matter of Black v
Watson, 81 AD3d 1316, 1317, lv dismissed in part and denied in part 17
NY3d 747). The consent order awarded the father sole legal and
physical custody of the child and granted the mother two weeknight
visits and overnight visitation on alternating Saturdays. The father
testified that, since the entry of that order, the mother failed to
comply with court-ordered psychiatric treatment, failed to return the
child from visitation on one occasion, and filed unfounded child abuse
complaints against him. The father further testified that the mother
engaged in alienating behavior such as telling the child that she had
to choose between the parents and that there could be fires at the
father’s house while the child was sleeping. We conclude that such
testimony, which the court found to be credible, was sufficient to
establish the requisite change in circumstances (see Matter of Howden
v Keeler, 85 AD3d 1561, 1561).

     We agree with the mother in appeal No. 2, however, that the
court’s suspension of the mother’s visitation with the child lacks a
sound and substantial basis in the record (see Matter of Lydia C., 89
AD3d 1434, 1436). “When making a determination with respect to
visitation, the most important factor is the best interests of the
child” (Matter of Balgley v Cohen, 73 AD3d 1038, 1038), and
“[v]isitation may not be denied solely for reasons unrelated to the
welfare of the child[ ]” (Vasile v Vasile, 116 AD2d 1021, 1021). “In
determining whether visitation between a parent and child should be
suspended, the court is to apply a ‘best interest[s] of the child’
standard. However, it is presumed that parental visitation is in the
best interest[s] of the child in the absence of proof that it will be
harmful” (Matter of Nathaniel T., 97 AD2d 973, 974; see Matter of Mark
C. v Patricia B., 41 AD3d 1317, 1318). Thus, “[t]he denial of
visitation to a noncustodial parent constitutes such a drastic remedy
that it should be ordered only when there are compelling reasons, and
there must be substantial evidence that such visitation is detrimental
to the child[ ]’s welfare” (Vasile, 116 AD2d at 1021; see Matter of
Diedrich v Vandermallie, 90 AD3d 1511; Matter of Frierson v Goldston,
9 AD3d 612, 614).

     Here, the record lacks the requisite “substantial evidence” that
visitation with the mother is detrimental to the child’s welfare
(Vasile, 116 AD2d 1021; see Diedrich, 90 AD3d 1511; Frierson, 9 AD3d
at 614). The record is clear, and the court specifically found, that
the child wished to continue to visit the mother (cf. Lydia C., 89
AD3d at 1436; Matter of Jacobs v Chadwick, 67 AD3d 1373). The father
testified that he did not observe any odd behavior when the child
returned from visitation with the mother, and he acknowledged that the
child was generally “happy” to visit her mother. The psychologist
acknowledged that the mother loves the child and that the child is
“functioning well,” and both parents testified that the child is
thriving in school. Indeed, the Attorney for the Child told the court
at the close of the hearing that she “certainly would never want to
recommend that [the child] have no contact with her mother.”

     We therefore modify the order in appeal No. 2 by vacating the
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                                                         CAF 10-00836

directive suspending any and all periods of visitation between the
mother and the child, and we remit the matter to Family Court to
determine an appropriate visitation schedule, which may include
supervised visitation (see Matter of Cameron C., 283 AD2d 946, 947, lv
denied 97 NY2d 606).

     We have reviewed the remaining contentions of the mother and
conclude that they are without merit.




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
