                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                       521147
__________________________________

In the Matter of TINA RR.,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
DENNIS RR.,
                    Respondent.

(And Another Related Proceeding.)
__________________________________


Calendar Date:   September 7, 2016

Before:   Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.

                             __________


     Samuel D. Castellino, Big Flats, for appellant.

     Allen Stone, Vestal, attorney for the child.

     Teresa C. Mulliken, Harpersfield, attorney for the child.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court         of Broome County
(Connerton, J.), entered June 25, 2015, which,         among other
things, dismissed petitioner's application, in         a proceeding
pursuant to Family Ct Act article 6, to modify         a prior order of
visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the divorced parents of a daughter
and son (born in 2002 and 2004, respectively). Pursuant to a
2010 visitation order, and upon stipulation of the parties,
Family Court (Charnetsky, J.) granted the father visitation with
both children on alternate weekends on Saturday and Sunday from
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9:00 a.m. to 5:00 p.m., without overnight stays, which visitation
was to occur at the mother's house, as well as other visitation
as the parties agreed upon. Since the 2010 order, there have
been numerous petitions filed by both parents and at least five
temporary orders of visitation have been issued.

      In July 2014, Family Court issued a temporary order of
visitation restricting the father's visitation to alternating
Sundays from 9:00 a.m. until 12:00 p.m. and requiring visitation
with both children to be at a public place and supervised by the
mother's niece. The court also provided for visitation with the
daughter from 9:00 a.m. until 12:00 p.m. on Sundays alternate to
those on which visitation with both children occurs, to be
supervised by either the niece or the maternal grandmother. In
October 2014, the mother filed an amended petition for
modification of the 2010 order alleging that, after she began
allowing the father to have unsupervised visitation with the
children in the fall of 2012, the father, among other things,
exercised poor parental judgment and had inadequate indoor
bathroom facilities. Specifically, the mother alleged that the
father took the children to see an inappropriate movie, which
resulted in their subsequent emotional distress, and allowed the
daughter to sing at a bar where patrons were consuming alcohol.
She also alleged that the father was verbally abusive to the
children and physically abusive to the son, which resulted in the
son's refusal to visit with the father.

      In December 2014, the father filed an amended petition to
modify the July 2014 temporary order alleging a change in
circumstances, specifically, that the mother's niece frequently
canceled his scheduled visits, thereby significantly disrupting
the visitation schedule, and also that he had been deprived of
phone contact with the children for nine months. Following a
fact-finding hearing in February and April 2015, a court-ordered
investigation by the local department of social services
(hereinafter DSS) and a Lincoln hearing, Family Court (Connerton,
J.) issued an order – which apparently addressed both the
mother's October 2014 petition and the father's December 2014
petition – granting the father, among other things, unsupervised
visits with the children on alternate weekends from 10:00 a.m.
Saturday until 5:00 p.m. Sunday, Christmas Eve and one week
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during the summer.   The mother now appeals.   We affirm.

      The mother contends that Family Court erred in granting the
father unsupervised visitation in light of a March 2014 alleged
domestic violence incident and her belief that the father is a
"physically and verbally violent person," which allegedly causes
both children emotional distress and the son's reluctance to
attend visitation. The attorney for the child, who was appointed
for the daughter, supports the award of unsupervised visitation
to the father in that the fact-finding hearing failed to adduce
any allegations or medical testimony that the father physically
abused the children. In contrast, the attorney for the child,
who was appointed for the son, contends that unsupervised
visitation with the son would be detrimental to his safety citing
that the son was afraid of visitation with the father and that
the father was both verbally and physically abusive toward the
son.

      "[A] party seeking to modify a prior order of visitation[]
[bears] the initial burden of showing that a change in
circumstances has occurred since the entry thereof that is
sufficient to warrant Family Court undertaking a best interests
analysis in the first instance; assuming that requirement is met,
[that party] then must show that modification of the prior order
is necessary in order to ensure the child[ren]'s continued best
interests" (Matter of Merwin v Merwin, 138 AD3d 1193, 1194
[2016]; see Matter of Ryan v Lewis, 135 AD3d 1135, 1136 [2016]).
As no one disputes that there was a change in circumstances, the
only issue before this Court is whether granting unsupervised and
expanded visitation time to the father is in the best interests
of the children (see Matter of Sparbanie v Redder, 130 AD3d 1172,
1173 [2015]; Matter of Chris X. v Jeanette Y., 124 AD3d 1013,
1014 [2015]). The best interests of the children generally lie
with a healthy, meaningful relationship with both parents (see
Matter of Swett v Balcom, 64 AD3d 934, 935-936 [2009], lv denied
13 NY3d 710 [2009]; Tait v Tait, 44 AD3d 1142, 1143 [2007]).
"Unless visitation is inimical to the child[ren]'s welfare,
Family Court is required to structure a schedule which results in
frequent and regular access by the noncustodial parent" (Matter
of Maziejka v Fennelly, 3 AD3d 748, 749 [2004] [citations
omitted]; accord Matter of Swett v Balcom, 64 AD3d at 935; see
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Matter of Sparbanie v Redder, 130 AD3d at 1173). "The
determination of whether visitation should be supervised is a
matter left to Family Court's sound discretion and it will not be
disturbed as long as there is a sound and substantial basis in
the record to support it" (Matter of Knight v Knight, 92 AD3d
1090, 1092 [2012] [internal quotation marks and citations
omitted]; accord Matter of Burrell v Burrell, 101 AD3d 1193, 1194
[2012]).

      At the fact-finding hearing, the mother testified that she
had concerns about the father's unsupervised visitation with the
children beginning in late 2012 and early 2013 when the son
refused to attend visitation and the daughter returned from
visitation anxious and unable to sleep at night. The mother
recalled a prior incident, when the son was approximately six
years old, in which the father encountered difficulties feeding
the son and, in explaining the incident, "gestur[ed] to [her]
like he had [the son] in a headlock" in order to "put the food in
[the son's] mouth." The father's account of this incident
sharply contradicts the mother's testimony and merely portrays
his attempt to convince his son to eat breakfast without using
corporal punishment. The father also denied the alleged verbal
abuse directed toward the son. The mother testified that the
father allowed the daughter to accompany him to pick up his
equipment from karaoke shows at bars and permitted the daughter
to sing in exchange for money from patrons who were consuming
alcohol. In contrast, the father testified that, although he
allowed the daughter to sing at multiple karaoke shows, she sang
in "the dining hall" at 9:30 a.m. The mother also recalled that
the children experienced emotional distress upon their return
from visitation with the father after he had undisputedly taken
them to see a late-night movie.

      In May 2013, the mother unilaterally ceased the father's
overnight visitations when she allegedly learned that the father
did not have a bathroom or running water in a camper that she
claims was his residence. The father testified that this was not
his primary residence, and he explained that there were bathroom
facilities available. During a March 2014 visitation at the
mother's house, an argument ensued and the father recorded the
incident. A transcript and digital copy of the recording were
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received into evidence. Upon hearing the recording, Family Court
ordered a DSS investigation, which led to a finding of
"indicated" with respect to both parents. The transcript
demonstrates that a physical altercation occurred between the two
children and that the parents struggled and disagreed as to how
to respond and administer disciplinary action. The mother's
niece testified about supervising the father's visits every other
Sunday. She testified that the daughter generally has positive
interactions with the father during the visitation, but noted
that the son is easily frustrated and that the two children are
frequently frustrated with each other, which required her to
intervene as a mediator. She also testified that her only
concern during the supervised visits was the son's reluctance to
attend and, therefore, she opined that the visits were "not very
efficient . . . money-wise and time-wise."

      As a result of the mother's October 2014 petition, another
temporary order of visitation was issued for the father's
visitation at a public location, with the paternal grandmother
acting as the supervisor. The mother's paramour testified that,
at one such visitation, he witnessed the father allegedly
"grabbing ahold of [the son] and shaking him and stuffing him
down in the chair or the couch." The father recalled the
incident and characterized it as a supervised, loving interaction
in which he was consoling his son and in which the paramour was
the aggressor. Although the police responded to the incident, no
criminal charges resulted. This incident resulted in a temporary
order that modified the father's visitation to allow the mother's
niece to serve as the supervisor and specified a different public
location. The father testified that he now resides with his
paramour in a three-bedroom house with a bed for each child and
working bathroom facilities. He avers that supervised
visitations at public locations are too costly, activity options
are limited on Sundays and the niece often reschedules or cancels
his visits.

      The evidence adduced at the fact-finding hearing, Lincoln
hearings and the transcript of the March 2014 incident
demonstrate that the two children have a contentious
relationship, which often results in fighting, and that both
parents have difficulty in disciplining the children. Although
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the son expressed a desire to have only supervised visitation
with the father, his wishes are just one factor that Family Court
considered and are not determinative (see Matter of Rivera v
LaSalle, 84 AD3d 1436, 1438-1439 [2011]). Furthermore, despite
the mother's various allegations, the father provided an
alternative narrative of events – which was within Family Court's
discretion to afford credit (see Matter of Chris X. v Jeanette
Y., 124 AD3d at 1015; Matter of Hayward v Campbell, 104 AD3d
1000, 1001 [2013]; Matter of Timothy N. v Gwendolyn N., 92 AD3d
1155, 1157 [2012]). Notably, Family Court previously had
dismissed a family offense petition brought by the mother
concerning the March 2014 incident and, apparently, took into
account DSS's report in its determination that supervised
visitation was not necessary to ensure the children's safety (see
Matter of Terwilliger v Jubie, 84 AD3d 1520, 1521 [2011]). Based
on the totality of the circumstances, and according due deference
to Family Court's unique opportunity to make credibility
determinations (see Eschbach v Eschbach, 56 NY2d 167, 173
[1982]), we are unpersuaded that Family Court abused its
discretion and find that a sound and substantial basis exists in
the record to support the modification of the terms of visitation
to expand the father's visitation time and deny the mother's
request for supervised visitation (compare Matter of Joseph G. v
Winifred G., 104 AD3d 1067, 1069 [2013], lv denied 21 NY3d 858
[2013]; Matter of Taylor v Fry, 63 AD3d 1217, 1218-1219 [2009]).

     Peters, P.J., McCarthy, Garry and Rose, JJ., concur.


     ORDERED the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
