                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 16, 2014                   516848
_________________________________

In the Matter of RAYCHELLE J.,
                    Respondent,
      v

KENDELL K.,                                 MEMORANDUM AND ORDER
                    Appellant.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                             __________


     Carman M. Garufi, Binghamton, for appellant.

     Norbert A. Higgins, Binghamton, for respondent.

     Bridget A. O'Connor, Binghamton, attorney for the children.

                             __________


Clark, J.

      Appeal from an order of the Family Court of Broome County
(Pines, J.), entered April 15, 2013, which, among other things,
granted petitioner's application, in proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody and
visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unmarried parents of two sons,
Kendell (born in 2002) and Kaelin (born in 2004). Pursuant to a
prior order of custody, the parties shared joint legal custody,
with the mother having primary physical custody and the father
having visitation one day a week and every other weekend. In
                              -2-                516848

practice, however, the father exercised his visitation
intermittently and as the parties could agree. In August 2012,
the father became irate after discovering that Kendell had
accidentally urinated in the father's vehicle on the way home
from football practice. The father hit the child in the chest
and head before striking the mother, who had attempted to
intervene and shield the child. The father then left the
mother's apartment, only to return a short while later, demanding
that the child clean the vehicle. After the arrival of law
enforcement, the father again left the mother's apartment.

      The mother thereafter commenced these proceedings seeking
modification of the prior order of custody and alleging that the
father committed a family offense. Following a fact-finding
hearing, as well as a Lincoln hearing with both children, Family
Court determined that the father had committed a family offense,
issued a two-year order of protection in favor of the mother and
the children,1 and awarded the mother custody of the children,
with supervised visitation to the father. The father now
appeals, challenging only the portion of Family Court's order
limiting his visitation with the children.2

      We affirm. In a custody modification case like this one,
once it has been established that there has been a change in
circumstances warranting a modification of the existing order,
the overriding concern is the best interests of the children (see
Matter of Knight v Knight, 92 AD3d 1090, 1091-1092 [2012]; Matter
of Peet v Parker, 23 AD3d 940, 941 [2005]). The decision to


    1
        The order of protection also prohibited the father from
having any contact with the mother's child from a different
relationship. That child is not the subject of the proceedings
herein.
    2
        The father does not challenge the order of protection or
Family Court's determination that a sufficient change in
circumstances warranting modification of the prior order had been
established and, thus, any arguments he may have had with respect
to those claims are deemed abandoned (see Matter of Telsa Z.
[Rickey Z.—Denise Z.], 71 AD3d 1246, 1249 n 3 [2010]).
                               -3-                516848

order supervised visitation is left to Family Court's sound
discretion and will only be disturbed by this Court when it lacks
a sound and substantial basis in the record (see Matter of
Burrell v Burrell, 101 AD3d 1193, 1194 [2012]; Matter of Beard v
Bailor, 84 AD3d 1429, 1430 [2011]). In this regard, supervised
visitation may be warranted if unsupervised time with the
children could be "detrimental to the child[ren]'s safety"
because the parent "'is either unable or unwilling to discharge
his or her parental responsibility properly'" (Matter of Taylor v
Fry, 63 AD3d 1217, 1218-1219 [2009], quoting Matter of Kathleen
OO., 232 AD2d 784, 786 [1996]).

      Here, the proof at the fact-finding hearing illustrated
that the father had a history of temper outbursts and an
inappropriate use of corporal punishment. Specifically, the
father repeatedly proclaimed that it is his right to hit his
children when he feels that they deserve it and that he would
continue to do so in the future. When asked if he would be
willing to participate in the children's therapy, he told Family
Court, in no uncertain terms, that he would not.

      The child protective worker assigned to investigate the
allegations made against the father testified at the fact-finding
hearing and described the father as uncooperative and irate.3
She stated that the father admitted to having "'whoop[ed] his
children's ass[es]' and [had hit] the [children] in the face and
chest for discipline" and would continue to do so in the future,
saying that no one could stop him. She also reported that the
children informed her that they were afraid of their father and
that he hits them in their heads and faces when they are in
trouble. Although the social worker recommended anger management
and parenting classes, the father expressed no interest in
engaging in such services.

      Under these circumstances, we reject the father's
contention that Family Court erred in restricting his contact
with the children to supervised visitation. Given the evidence


     3
        The investigation resulted in the father being indicated
for neglect.
                              -4-                  516848

in the record that the father subjected both children to corporal
punishment and testified that he intended to continue to do so
and would not engage in family counseling, we cannot say that
Family Court abused its discretion in determining that supervised
visitation was in the best interests of the children (see Matter
of Knight v Knight, 92 AD3d at 1092-1093; Matter of Beard v
Bailor, 84 AD3d at 1430-1431).

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



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
