NY visitation case: Twelve-year-old child calls important shots

Who really wants to have their names in court reporters? Especially when it comes to disputes over parental access to their children. Probably not too many people.

In Boggio v. Boggio, mom and dad were fighting over dad’s ability to have access to his daughter who, at the time of family court proceedings, was 11 years old. Dad was appealing a family court decision in part granting mom’s petition to modify dad’s visitation provisions to the extent of limiting his visitation and directing him to participate in counseling. Daughter had a big say in the outcome.

The appeals court upheld the family court decision noting that

The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances. The determination of visitation issues is entrusted to the sound discretion of the Family Court and will not be disturbed unless it lacks a sound and substantial basis in the record. [citations omitted]

Dad had not disputed that a breakdown in the relationship with his daughter with a suspension in visitation precipitated a legitimate modification to the visitation schedule. The family court determined that it would be in the best interests of the child for visitation to resume incrementally by permitting the father telephone contact three times per week, and weekly unsupervised visitation on Saturdays, which could expand to overnight visits without further court order upon the child’s consent. [emphasis added]

The court found that family court gave “appropriate weight to the wishes expressed by the child” but that “the modified visitation schedule does not tend to unnecessarily defeat [dad's] right to visitation because it does not make visitation entirely dependent upon his daughter’s consent.” Perhaps just with respect to overnights.

There are at least a few important messages here.

• First, parents may be able to avoid having a court decide this (and the expense involved) if they can make use of mediation or other out-of-court negotiation methods.
• Second, despite the tender age, an 11- or 12-year-old child may have a tremendous say in court as to what are in that child’s best interests.
• Third, divorce mediation may also avoid the situation where a child is calling the shots. Few would disagree that in most instances it is the parents, not the children, who should be making decisions about parenting and visitation.

Matter of Boggio v Boggio, 2012 NY Slip Op 04740 (Decided on June 13, 2012, Appellate Division, Second Department) Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.