Spampinato v. Mazza

152 A.D.3d 525

58 N.Y.S.3d 501

In the Matter of Denise SPAMPINATO, respondent,

v.Justin MAZZA, appellant.

Supreme Court, Appellate Division, Second Department, New York.

July 5, 2017.

Annette G. Hasapidis, South Salem, NY, for appellant.

Sheila Callahan O'Donnell, Cornwall, NY, for respondent.

Clara H. Lipinsky, Pine Island, NY (Kelli O'Brien of counsel), attorney for the child.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

Appeal by the father from an order of the Family Court, Orange County (Victoria B. Campbell, J.), entered February 2, 2016. The order, insofar as appealed from, after a hearing, granted that branch of the mother's petition which was for sole legal custody of the parties' child, and limited the father's visitation with the child to every week from Monday evening until Wednesday evening, and every other weekend.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the mother's petition which was for sole legal custody of the parties' child, and substituting therefor a provision awarding the parties joint legal custody of the parties' child with final decision-making authority to the mother; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The mother and the father have one child together. The mother commenced this custody proceeding, seeking sole legal and physical custody of the parties' child. After a hearing, the Family Court awarded the mother sole legal and physical custody of the subject child, with visitation to the father. The father appeals from so much of the order as granted that branch of the mother's petition which was for sole legal custody and limited his visitation with the child to every week from Monday evening until Wednesday evening, and every other weekend.

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"Visitation is a joint right of the noncustodial parent and of the child" ( Weiss v. Weiss, 52 N.Y.2d 170, 175, 436 N.Y.S.2d 862, 418 N.E.2d 377 ). "Absent extraordinary circumstances where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges" ( Matter of Brian M. v. Nancy M., 227 A.D.2d 404, 404, 642 N.Y.S.2d 66 ). "The determination of visitation to a noncustodial parent is within the sound discretion of the hearing court, based upon the best interests of the [child], and it should not be set aside unless it lacks a sound and substantial basis in the record" ( Matter of Dennis D. [Justesen], 83 A.D.3d 700, 702, 922 N.Y.S.2d 90 ). Here, although the father contends that the Family Court should not have limited his visitation with the child to every week from Monday evening until Wednesday evening, and every other weekend, the visitation schedule ordered by the Family Court provides the father with meaningful time with the child (see Matter of Levingart v. Levingart, 147 A.D.3d 763, 764–765, 46 N.Y.S.3d 206 ). The court's visitation determination was in the best interests of the child and has a sound and substantial basis in the record and, thus, we decline to disturb it.

However, the Family Court's determination that it was in the child's best interests to award sole legal custody to the mother lacks a sound and substantial basis in the record. "[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in a mature civilized fashion" ( Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ; see Matter of Wright v. Kaura, 106 A.D.3d 751, 964 N.Y.S.2d 573 ). "[J]oint custody is inappropriate ‘where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child’ " (Matter of Edwards v. Rothschild, ...