SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1043.3 

CAF 14-00850 

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF SUSAN TUTTLE, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

BETH MATEO, RESPONDENT-RESPONDENT. 

(APPEAL NO. 3.) 

 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR

PETITIONER-APPELLANT. 

ROBERT L. GOSPER, ATTORNEY FOR THE CHILD, CANANDAIGUA. 

 

Appeal from a second amended order of the Family Court, Ontario

County (Maurice E. Strobridge, JHO), entered April 25, 2014 in a

proceeding pursuant to Family Court Act article 6. The second amended 

order granted that part of the petition of respondent seeking to

terminate petitioner’s physical visitation with the child. 

It is hereby ORDERED that the second amended order so appealed

from is unanimously modified on the law by vacating the directive

suspending petitioner’s visitation and as modified the second amended

order is affirmed without costs and the matter is remitted to Family

Court, Ontario County, for further proceedings in accordance with the

following Memorandum: In appeal No. 1, petitioner mother appeals from

an order dismissing her petition against respondent stepmother

alleging the violation of Family Court’s temporary visitation order,

and in appeal No. 2 she appeals from an amended order clarifying the

court’s order in appeal No. 1 by denying the stepmother’s petition to

terminate the mother’s visitation with the subject child. In appeal

No. 3, the mother appeals from a second amended order that further

clarified the order in appeal No. 1 by denying that part of the

stepmother’s petition seeking to terminate the mother’s telephonic

visitation, but granting that part of the petition seeking to

terminate the mother’s physical visitation. We note at the outset

that the mother’s appeals from the order and amended order in appeal

Nos. 1 and 2 must be dismissed inasmuch as those orders were

superseded by the second amended order in appeal No. 3 (see Matter of

Eric D. [appeal No. 1], 162 AD2d 1051, 1051).

With respect to the second amended order in appeal No. 3, we

reject the mother’s contention that the stepmother failed to establish

a change in circumstances since entry of the guardianship order to

warrant reexamination of the visitation arrangement (see Matter of Fox
-2- 1043.3 

CAF 14-00850 

v Fox, 93 AD3d 1224, 1224-1225). The record establishes that, among

other things, the relationship between the mother and the child had

deteriorated significantly since entry of the order to the point that

the child no longer wished to have visitation with the mother (see

Matter of Rulinsky v West, 107 AD3d 1507, 1508; Matter of Cole v

Nofri, 107 AD3d 1510, 1511, appeal dismissed 22 NY3d 1083; Matter of

Susan LL. v Victor LL., 88 AD3d 1116, 1117).

We agree with the mother, however, that the court’s suspension of

her physical visitation with the child lacks a sound and substantial

basis in the record (see Fox, 93 AD3d at 1225). Although

“[v]isitation decisions are generally left to Family Court’s sound

discretion” (Matter of Lydia C. [Albert C.], 89 AD3d 1434, 1436

[internal quotation marks omitted]; see Matter of Helles v Helles, 87

AD3d 1273, 1274), “[t]he denial of visitation to a noncustodial parent

constitutes such a drastic remedy that it should be ordered only when

there are compelling reasons, and there must be substantial evidence

that such visitation is detrimental to the child[ ]’s welfare” (Vasile

v Vasile, 116 AD2d 1021, 1021; see Matter of Diedrich v Vandermallie,

90 AD3d 1511, 1511; Matter of Frierson v Goldston, 9 AD3d 612, 614). 

“While the wishes of the child[ ] should be given consideration . . 

. , ‘[v]isitation with a noncustodial parent is presumed to be in a

child’s best interests’ ” and, in order to “overcome this strong

presumption,” it must be established that “visitation would be

detrimental to the child[ ]’s welfare” (Matter of Brown v Erbstoesser,

85 AD3d 1497, 1499).

Here, the record lacks the requisite “substantial evidence” that

visitation with the mother is detrimental to the child’s welfare

(Vasile, 116 AD2d at 1021; see Diedrich, 90 AD3d at 1511; Frierson, 9

AD3d at 614). Although, as noted, the record establishes that the

child no longer wished to see the mother, her wishes with respect to

visitation are not determinative (see Matter of Luke v Luke, 90 AD3d

1179, 1181; Matter of Bond v MacLeod, 83 AD3d 1304, 1306; Bubbins v

Bubbins, 136 AD2d 672, 672). We therefore modify the second amended

order in appeal No. 3 by vacating the directive terminating physical

visitation between the mother and the child, and we remit the matter

to Family Court to determine an appropriate visitation schedule, which

may include supervised visitation (see Matter of Cameron C., 283 AD2d

946, 947, lv denied 97 NY2d 606). We have reviewed the mother’s

remaining contentions and conclude that they are without merit. 

Entered: October 3, 2014 Frances E. Cafarell

Clerk of the Court