BARONE v. BARONE (2025)

Order, Supreme Court, New York County (Ariel D. Chesler, J.), entered December 19, 2022, which, to the extent appealed from as limited by the briefs, granted defendant father CFS supervised therapeutic visits with the subject child on alternate weekends for five hours, to be arranged and paid for by the father, and directed the father to follow all of the recommendations of the forensic psychiatrist as delineated in the December 5, 2021 psychiatrist's report, unanimously affirmed, without costs.

“It is well settled that the question of a child's best interest, the foremost consideration in matters of custody and visitation, is within the discretion of the trial court whose determination will not be set aside unless it lacks a sound and substantial evidentiary basis” (Matter of Frank M. v. Donna W., 44 A.D.3d 495, 495–496, 844 N.Y.S.2d 22 [1st Dept. 2007] [internal quotation marks omitted]).  Here, Supreme Court's determination that supervised visitation is in the best interests of the child is supported by the record and that determination should not be disturbed (see Matter of Arcenia K. v. Lamiek C., 144 A.D.3d 610, 42 N.Y.S.3d 124 [1st Dept. 2016]).  Together with its own observations of the father during the eight-day trial, the court relied on plaintiff mother's credible and uncontroverted testimony about the father's inappropriate parenting actions, such as leaving the child at home alone at a very young age, becoming angry easily with both the mother and child, and driving while intoxicated with the child in the car.  There was also uncontroverted testimony that the father used prescribed medications with alcohol and that his drinking had increased after the child's birth.  Testimony from other family members was consistent with the mother's testimony.  Additionally, the forensic psychiatrist was concerned about the impact of the combination of the prescribed medications and alcohol, which exposed the child to further risks and unsafe behavior.  Moreover, there was a prior two-year order of protection for the mother against the father.  Thus, there is substantial evidence in the record that the child's safety and well-being were at risk, necessitating supervised visitation (see Matter of Frank M., 44 A.D.3d at 495–496, 844 N.Y.S.2d 22).

The father's argument that the cost of supervised visitations should be divided between the parties is being raised for the first time on appeal and there is nothing in the record to ascertain if the father's claim is accurate, much less persuasive (see Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408–409, 884 N.Y.S.2d 24 [1st Dept. 2009]).

We have considered the father's remaining arguments and find them unavailing.