| Matter of Brown v Erbstoesser |
| 2011 NY Slip Op 05594 [85 AD3d 1497] |
| June 30, 2011 |
| Appellate Division, Third Department |
| In the Matter of Tracey Brown, as Attorney for the Children,Appellant, v Gregory Erbstoesser et al., Respondents. (And Another RelatedProceeding.) |
—[*1] Samuel D. Castellino, Elmira, for Gregory Erbstoesser, respondent. Hinman, Howard & Kattell, L.L.P., Binghamton (Katherine Fitzgerald of counsel), for LaurieS. Erbstoesser, respondent.
Spain, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered November 10, 2009, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify prior orders of visitation.
Respondents are the divorced parents of two daughters, born in 1994 and 1997. In 2008, theyconsented to a Family Court order continuing the existing custody arrangement whereby theprimary residence was with respondent Laurie S. Erbstoesser (hereinafter the [*2]mother) and respondent Gregory Erbstoesser (hereinafter the father)had parenting time every other weekend. Among other things, the consent order provided that thefather attend counseling with the children every other week and parenting time with the fatherone night per week in alternating weeks when they are not engaged in counseling. It appears thatat some point thereafter, the mother began to take a "hands off" attitude, refusing to compel orexpect the children to visit or spend time with their father. She essentially left that decision to thechildren's discretion. As a result, the father has had very little time with the children since the2008 consent order.
In February 2009, the father commenced a proceeding alleging that the mother violated theconsent order by denying him parenting time with the children. Subsequently, petitioner, theattorney for the children, filed a separate petition seeking modification of the prior order ofvisitation so that any visitation would be at the sole discretion of the children; the motherappeared with counsel and, although she did not file a separate petition, she made an oralapplication and advocated throughout the fact-finding hearing for the same relief. Following thehearing wherein both children testified,[FN1]Family Court found, among other things, that the mother had willfully violated the 2008 consentorder by "wrongfully deferring too much authority to the [c]hildren on th[e] issue [of visitation]and fail[ing] to enforce the issue properly," and doing "little, to nothing, to encourage therelationship between the [father] and the [c]hildren." As its only sanction, the court directed thatthe mother pay the father's counsel fees and she has not appealed from any part of thatdetermination and order. The court then partially granted the modification application byeliminating the children's weekday visitation with the father, and continuing all other aspects ofthe previous orders. Petitioner now appeals.
Asserting that Family Court did not go far enough in reducing visitation, petitioner arguesthat the court failed to properly consider the best interests of the children or to accord theappropriate weight to their wishes in modifying the prior order of visitation. "As with custody, anexisting visitation order will be modified only if the applicant demonstrates a change incircumstances that reflects a genuine need for the modification so as to ensure the best interestsof the child" (Matter of Taylor vFry, 63 AD3d 1217, 1218 [2009] [citations omitted]; accord Matter of Braswell v Braswell,80 AD3d 827, 829 [2011]). A sufficient change may be shown where, as here, the desire ofthe children to visit the noncustodial parent has changed (see Matter of Burch v Willard, 57 AD3d 1272, 1273 [2008];Matter of Bowers v Bowers, 266 AD2d 741, 742 [1999]). It is not disputed on appeal thata change in circumstances has been shown, and it is [*3]abundantly clear that counseling has not been effective.[FN2]
While the wishes of the children should be given consideration (see Matter of Flood v Flood, 63 AD3d1197, 1198-1199 [2009]; Matter ofMiosky v Miosky, 33 AD3d 1163, 1166 [2006]), "[v]isitation with a noncustodial parentis presumed to be in a child's best interests" (Matter of Chambers v Renaud, 72 AD3d 1433, 1434 [2010];see Matter of Flood v Flood, 63 AD3d at 1198; see also Matter of Andrews v Coryea, 21 AD3d 1350, 1350[2005]). To overcome this strong presumption—and effectively deny court-scheduledvisitation to the father—it would have to be demonstrated that visitation would bedetrimental to the children's welfare (seeMatter of Swett v Balcom, 64 AD3d 934, 935-936 [2009], lv denied 13 NY3d710 [2009]; Matter of Frierson vGoldston, 9 AD3d 612, 614 [2004]).
Here, it has not been demonstrated that visitation has been detrimental to the children(see Matter of Swett v Balcom, 64 AD3d at 935; Matter of Frierson v Goldston, 9AD3d at 614). It appears, instead, that the children perceive visitation as an inconvenience orannoyance and that the mother has fostered their dismissive attitude toward their father as well astheir unwillingness to visit with him. In doing so, the mother has failed to honor the abidingprinciple that the children's "best interests will be optimally served by allowing the developmentof a healthy relationship with both parents" (Matter of Rivera v Tomaino, 46 AD3d 1249, 1250 [2007]).
Under the facts of this case, giving the children the final decision on visitation would betantamount to the termination of visitation without justification. Notwithstanding the father'sshortcomings, Family Court's decision to continue visitation, with the slight reduction noted, issupported by a sound and substantial basis in the record and should not be disturbed (seeMatter of Flood v Flood, 63 AD3d at 1198).
Finally, in our view, the mother's failure to genuinely and affirmatively encourage thechildren to visit with their father has contributed significantly to their inability and unwillingnessto look beyond his parental imperfections so as to benefit from a wholesome relationship withhim. On the other hand, the father's behavior at times reflects poor judgment and poor parentingskills, also a significant factor. Family Court's order should therefore be modified to provideeffective counseling to this family. Accordingly, we will remit this matter to Family Court anddirect that the parents choose a new therapist and that both parents actively participate and fullycooperate in family counseling. Further, the court should craft an order that includes provisionsfor said counseling, and parenting education and short-term monitoring by the court, wherenecessary, to insure the success of the counseling process.[*4]
Peters, J.P., McCarthy, Garry and Egan Jr., JJ., concur.Ordered that the order is modified, on the facts, without costs, by reversing so much thereof asdirected that respondent Gregory Erbstoesser alone participate in counseling with the children;both respondents must actively and cooperatively participate in counseling with the children witha new counselor selected by stipulation or, if necessary, by Family Court, and matter remitted tothe Family Court of Broome County for further proceedings not inconsistent with this Court'sdecision; and, as so modified, affirmed.
Footnote 1: Both children testified underoath at an in camera hearing in which their parents were excluded on consent, but the attorneyswere present and the parents' attorneys were permitted to cross-examine the children. The courtmade it clear that the record of that hearing would not be sealed.
Footnote 2: Notably, while Family Courtobserves in its decision that "counseling for all parties is apparently needed," the court neglected,in the order appealed from, to direct that both parents actively participate and cooperate in familycounseling.