Matter of Ross v Ross
2011 NY Slip Op 06036
Decided on July 19, 2011
Appellate Division, Second Department
Father appealed the decision of the family court to modify joint custody so as to grant mother sole physical and legal custody and award father only supervised visitation.
The Second Department modified the order to grant father unsupervised visitation two days per week and otherwise affirmed. Modification is permissible only upon showing of a change in circumstances such that modification is needed to ensure the best interests of the child, determined by a review of the totality of the circumstances. Because the determination depends on an assessment of the credibility of witnesses, the family court findings are not disturbed unless they lack a sound and substantial basis in the record.
Here, there was such a basis for finding a change in circumstances since the initial custody order and that it was in the child’s best interest to award sole custody to mother. However, the lower court erred in awarding only supervised visitation to father. While the family court’s credibility assessments are entitled to great weight, the court improperly disregarded the opinion of the court-appointed forensic examiner and placed undue weight on the wishes of the child that visitation be supervised, especially in light of the child’s maturity level and potential for manipulation identified by the forensic expert. The record reflected that the child wanted to see father and had liberal, unsupervised visitation with father throughout the child’s life.