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Jose F. v. Sylvia P.

132 A.D.3d 592 Court N.Y. App. Div. Decision date 2015-10-29 English

Judges Concur — Gonzalez, P.J., Friedman, Gische and Kapnick, JJ.

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p. 592
In the Matter of Jose F., Respondent, v Sylvia P., Respondent. Carolyn F., Nonparty Appellant.
[18 NYS3d 616]

Order, Family Court, New York County (Carol J. Goldstein, Ref.), entered on or about September 24, 2014, which, to the extent appealed from as limited by the briefs, granted, after a hearing, petitioner father’s petition for overnight visitation with the parties’ child, unanimously affirmed, without costs.

The Referee’s finding that it is in the child’s best interest to award the father overnight visitation with the child, is supported by a sound and substantial basis in the record (see Victor L. v Darlene L., 251 AD2d 178 , 178 [1st Dept 1998], lv denied 92 NY2d 816 [1998]; see also Eschbach v Eschbach, 56 NY2d 167 , 173-174 [1982]). The 12-year-old child’s disinclination towards overnight visits at the father’s home is not determinative (see Eschbach, 56 NY2d at 173 ), and the record supports the Referee’s finding that respondent mother’s negative attitude about overnight visits and her “enmeshed relationship” with the child are “major” causes of the child’s anxiety and opposition (see id.; see also Matter of Susan A. v Ibrahim A., 96 AD3d 439 , 440 [1st Dept 2012]).

p. 593
Although a court-appointed psychologist testified that he could not recommend overnight visitation at the time he wrote his forensic report, the Referee properly discounted those recommendations, especially given the passage of time since the report was made, the fact that the child was in therapy and evidence that the child has a good relationship with the father (see Matter of Martin V. v Karen Beth G., 305 AD2d 305 , 306 [1st Dept 2003]).

We have considered the child’s remaining contentions and find them unavailing.

Concur — Gonzalez, P.J., Friedman, Gische and Kapnick, JJ.

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