                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 29, 2015                    517265
________________________________

In the Matter of GARRETT J.
   WAGNER,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

LISA M. WAGNER,
                    Respondent.
________________________________


Calendar Date:    December 16, 2014

Before:    Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                              __________


     Carman M. Garufi, Binghamton, for appellant.

     Samuel D. Castellino, Big Flats, for respondent.

     Sharon L. Dyer, Binghamton, attorney for the child.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Broome County
(Connerton, J.), entered June 18, 2013, which, among other
things, partially granted petitioner's application, in a
proceeding pursuant to Family Ct Act article 6, to modify a prior
order of visitation.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a son (born in 2007).
In 2009, Family Court awarded the mother full custody with the
father having supervised visitation two hours a week. As is
relevant herein, the father commenced this proceeding in 2012
seeking to modify the visitation order, initially requesting at
least five hours of visitation every other weekend, but, during
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the course of the proceedings, he increased that request to
include overnight visitation from Friday until Sunday. While the
proceeding was pending, the father was granted temporary
visitation for five hours a week. Following a hearing, Family
Court partially granted the father's modification petition by,
among other things, awarding four hours of unsupervised
visitation every other Saturday and alternating holidays. This
appeal by the father ensued.

      As a preliminary matter, we are unpersuaded by the
contention of the mother and the attorney for the child that a
subsequent order issued during the pendency of this appeal that
granted the mother's request for supervised visitation renders
this matter moot. The father was not present at the hearing on
that matter and the subsequent order does not appear to otherwise
alter the duration of the visitation that was directed in the
order that is the subject of this appeal (see e.g. Matter of
Virginia C. v Donald C., 114 AD3d 1032, 1032-1033 [2014]).

      Turning to the merits, the father contends that Family
Court erred in failing to grant him more extensive visitation.
It is well settled that "Family Court has broad discretion in
determining an appropriate visitation schedule, and its findings
in that regard are entitled to great deference unless they lack a
sound and substantial basis in the record" (Matter of Daniel v
Pylinski, 61 AD3d 1291, 1292 [2009]). Here, the record reflects
that the father did not have contact with the child since May
2010, due in part to drug use and confinement in jail in
connection with a drug offense. Furthermore, although the court
recognized the father's effort and progress in addressing his
drug addiction and mental health issues, he had not fully
completed the program at the time of this proceeding and he was
living in a supportive living facility for adults in recovery for
substance abuse. Significantly, while exercising visitation
rights pursuant to the temporary visitation order issued during
the proceeding, the father was not forthright about his current
living situation or that the visitations were spent with his
girlfriend who is also a participant in a substance abuse
recovery program. Given the foregoing, as well as the young age
of the child, we find that a sound and substantial basis exists
to support the court's determination that it is in the child's
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best interest to grant four hours of visitation every other
Saturday, and not overnight visitation, and that decision will
not be disturbed (see Matter of Rohan AA. v Lonna CC., 109 AD3d
1051, 1053 [2013]; Matter of Daniel Pylinski, 61 AD3d at 1292).

     Lahtinen, J.P., McCarthy, Lynch and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
