

Matter of Lopez v Lopez (2015 NY Slip Op 03163)





Matter of Lopez v Lopez


2015 NY Slip Op 03163


Decided on April 15, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 15, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.


2014-01548
 (Docket No. V-12935-13)

[*1]In the Matter of Samuel Lopez, appellant, 
vAzucena Lopez, respondent.


Gina M. Scelta, Huntington, N.Y., for appellant.
Janessa M. Trotto, Holbrook, N.Y., for respondent.
Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for the child.

DECISION & ORDER
Appeal from an order of the Family Court, Suffolk County (Linda M. Boggio, Ct. Atty. Ref.), dated January 14, 2014. The order, insofar as appealed from, upon granting the father's petition to modify an order of custody and visitation of the Family Court, Queens County (Salvatore J. Modica, J.), dated June 30, 2005, directed that his visitation with the subject child be supervised.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
"It is within the sound discretion of the [Family Court] to determine whether visitation should be supervised" (Cervera v Bressler, 50 AD3d 837, 839, quoting Matter of Morgan v Sheevers, 259 AD2d 619, 620; see Matter of Custer v Slater, 2 AD3d 1227, 1228), and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Cervera v Bressler, 50 AD3d at 839; Matter of Khan v Dolly, 39 AD3d 649, 651; Matter of Kachelhofer v Wasiak, 10 AD3d 366; Matter of Levande v Levande, 308 AD2d 450, 451). "Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child" (Cervera v Bressler, 50 AD3d at 839, quoting Matter of Gainza v Gainza, 24 AD3d 551, 551; see Rosenberg v Rosenberg, 44 AD3d 1022, 1024; Purcell v Purcell, 5 AD3d 752, 753).
Here, the evidence established that the subject child, who was 11 years old at the time of the fact-finding hearing, and who has serious physical and mental health challenges, has had very little contact with his father since 2008, and that he became agitated when he saw his father. Accordingly, the Family Court did not improvidently exercise its discretion in directing that the father's visitation with the child be supervised.
BALKIN, J.P., CHAMBERS, MILLER and HINDS-RADIX, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


