| Matter of Susan LL. v Victor LL. |
| 2011 NY Slip Op 07332 [88 AD3d 1116] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Susan LL., Appellant, v Victor LL.,Respondent. |
—[*1] Christine E. Nicolella, Delanson, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.),entered October 4, 2010, which, among other things, dismissed petitioner's application, in threeproceedings pursuant to Family Ct Act articles 6 and 8, to modify a prior order of visitation.
The parties were married in 2000 and are the parents of a son (born in 2002). Upon theirdivorce, they stipulated to joint custody of the child, with primary physical custody to petitioner(hereinafter the mother) and visitation to respondent (hereinafter the father) in Florida, where hehas resided since 2005. In June 2007, Family Court (Foster, J.H.O.) granted the mother's petitionto modify the prior order by requiring the father's visitation to take place in New York. In April2010, the mother commenced a family offense proceeding alleging that the father was harassingher through telephone calls and e-mails, and in May 2010 she petitioned for modification of theprior order, seeking suspension of the father's visitation. The father cross-petitioned for visitationin Florida. Family Court (Bartlett III, J.) dismissed the mother's modification petition, dismissedthe father's cross petition for visitation in Florida, and established a schedule for his visitation inNew York. Further, among other things, the court required the father to participate in counselingand gave him permission to petition for visitation [*2]in Floridaafter May 2011 if he so chose.[FN1]The mother appeals, with the support of the attorney for the child.
" '[A]n existing visitation order will be modified only if the applicant demonstrates a changein circumstances that reflects a genuine need for the modification so as to ensure the bestinterests of the child' " (Matter ofBraswell v Braswell, 80 AD3d 827, 829 [2011], quoting Matter of Taylor v Fry, 63 AD3d1217, 1218 [2009]). A change in circumstances was established by the breakdown of therelationship between the father and child, such that the child developed a strong preference not tovisit the father (see Matter of Burch vWillard, 57 AD3d 1272, 1273 [2008]; Matter of Oddy v Oddy, 296 AD2d 616,617 [2002]; Matter of Bowers v Bowers, 266 AD2d 741, 742 [1999]) and by the father'sfailure to visit the child for more than a year before the hearing (compare Matter of Whitcomb vSeward, 86 AD3d 741, 742-743 [2011]). Thus, Family Court properly conducted ananalysis of the child's best interests. Nonetheless, the mother contends that the court erred in thisinquiry by refusing to suspend the father's visitation. We disagree.
Visitation with a noncustodial parent is presumed to be in a child's best interests and isdenied " 'only under the most compelling circumstances where visitation would be detrimental tothe child's welfare' " (Matter of Brown vWhite, 3 AD3d 743, 744 [2004], quoting Matter of Shaun X., 300 AD2d 772,773 [2002]). A clinical social worker who had treated the child for several years testified that thechild was disturbed by ongoing conflict between the mother and the father. She testified thatduring her treatment of the child, the mother's ability to shield him from these altercations hadimproved as a result of counseling. However, despite several telephone conversations with thesocial worker[FN2]and a single in-person counseling session, the father had not stopped putting the child in themiddle of his conflicts with the mother and had not cooperated with the social worker's efforts toassist him in improving his relationship with the child. The social worker testified that the childhad overheard a number of angry remarks and messages directed by the father at the mother; as aresult, he had developed a perception that the father was "really mean to his mom" and feltobliged to defend her during visits with the father. Despite these problems, the child was willingto engage in visitation with the father until an incident that transpired during the father'sin-person counseling session in June 2009. On this occasion, the father spent much of the sessionurging the child to visit him in Florida, and finally told the child that if he did not do so, thefather would not see him again. The social worker described the child as "devastated" by theremark and stated that ever since the incident, the child had been very angry with the father andwas vehemently opposed to visiting him. The social worker opined that future visits between thefather and child should be supervised and should take place in New York. However, she alsotestified that she was not suggesting that the father have no visitation with the child at all.[*3]
Throughout his testimony, the father continued to insistthat his visitation with the child must take place in Florida.[FN3]He maintained that he did not have a problem requiring counseling, and consistently blamedothers—particularly the mother—for his difficulties with the child. For example,instead of taking responsibility when the child was disturbed by angry, profane messages that heleft on the mother's answering machine, the father blamed the mother for failing to prevent thechild from overhearing them. He admitted failing to visit the child during the 14 monthsfollowing the June 2009 therapy session, thereby confirming his warning to the child that hewould not see him again if the child did not conform to his wishes. However, he alsoacknowledged that this statement had been a "mistake," stated that he was willing to apologize tothe child, and testified that he had maintained telephone contact with the child despite his failureto visit him. He further admitted that he had erred by contributing to arguments in which thechild should not have been involved.
It is clear from this testimony and other credible evidence in the record that the father'sconduct caused or significantly contributed to his estrangement from the child. Nonetheless, weagree with Family Court that the " 'drastic remedy' " of suspending all visitation is not required(Matter of Laware v Baldwin, 42AD3d 696, 697 [2007], quoting Matter of McCauliffe v Peace, 176 AD2d 382, 383[1991]; accord Matter of Parker vParker, 68 AD3d 1277, 1279 [2009]). The preference of this relatively young child tohave no visitation with the father is a factor to be taken into account in determining his bestinterests, but is not dispositive (seeMatter of Flood v Flood, 63 AD3d 1197, 1198-1199 [2009]; compare Matter ofMcGovern v McGovern, 58 AD3d 911, 915 [2009]).[FN4]The court's disposition was carefully crafted to assist the father in rebuilding his relationship withthe child by incorporating most of the social worker's recommendations toward that end, with theexception of supervised visitation. By directing the father, among other things, to exercise allavailable visitation, engage in counseling, and communicate regularly with the child, and furtherdirecting the mother to improve her efforts to encourage and facilitate visitation, the court offeredthe father an opportunity to rebuild the child's trust, with the expectation that visitation in Floridacould be resumed when these efforts succeeded. We find a sound and substantial basis in therecord for the court's conclusion that this disposition is in the best interests of the child (see Matter of Brown v Erbstoesser, 85AD3d 1497, 1500 [2011]; Matter of Braswell v Braswell, 80 AD3d at 831;Matter of Fish v Manning, 300 AD2d 932, 933 [2002]). Thus, the dismissal of themother's modification petition will not be disturbed.[*4]
Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ.,concur. Ordered that the order is affirmed, without costs.
Footnote 1: Family Court also found that thefather had committed a family offense and issued an order of protection precluding him fromcommunicating with the mother except to discuss the child.
Footnote 2: The social worker described thetelephone conversations as "heated discussions" during which the father "yell[ed]" and, on oneoccasion, became so angry that the social worker terminated the conversation by hanging up onhim.
Footnote 3: He did agree to participate in avisit orchestrated by Family Court to occur while he was in New York for the hearing.
Footnote 4: The attorney for the child assertsthat Family Court's decision improperly revealed the substance of some of the child'scommunications during the Lincoln hearing. Although it is readily apparent that theintention was to benefit the child, it is nonetheless a betrayal to share a child's testimony afterpromising confidentiality. Absent a direction to the contrary, " 'the child's right to confidentialityshould remain paramount' " (Matter of Verry v Verry, 63 AD3d 1228, 1229 [2009], lvdenied 13 NY3d 707 [2009], quoting Matter of Hrusovsky v Benjamin, 274 AD2d674, 676 [2000]; see Matter of Rivera v LaSalle, 84 AD3d 1436, 1437 [2011]).