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