| Matter of Yishak v Ashera |
| 2011 NY Slip Op 08864 [90 AD3d 1184] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Timnit Yishak, Appellant, v TensaewAshera, Respondent. |
—[*1] Christopher A. Pogson, Binghamton, for respondent. Daniel Gartenstein, Kingston, attorney for the children.
Kavanagh, J. Appeal from an order of the Family Court of Broome County (Charnestsky, J.),entered September 28, 2010, which dismissed petitioner's application, in a proceeding pursuantto Family Ct Act article 6, to hold respondent in violation of a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) were married andare the parents of five children, two of whom are under the age of 21 (born in 1993 and 1999)and are the subject of this proceeding. After the parties separated, Family Court, in an orderentered in January 2009, awarded physical custody of the two children—and a third childwho at that time was also under 21—to the father. The mother appealed and this Courtaffirmed (Matter of Yishak vAshera, 68 AD3d 1282 [2009]). Additional petitions were later filed and, in September2009, the court entered an order directing that any visits by the mother with the children were tooccur at the Family and Children's Society. It also required the father to, within 10 days of theissuance of that order, "enroll the subject children in counseling at the Family and Children'sSociety or with such other therapist as he selects." Two months later, the mother filed a petitionalleging that the father had willfully violated this order by failing to timely enroll the children incounseling. After a trial at which the father and the parties' adult son testified, the court foundthat the father had not violated the prior order because he had made a good faith effort to arrangefor counseling, and it dismissed the petition. The mother appeals and we now affirm.[*2]
In support of her petition, the mother was required toshow by clear and convincing evidence "that there was a lawful court order in effect that clearlyexpressed an unequivocal mandate, that [the father] . . . had actual knowledge of itsterms, and that his . . . failure to act defeated, impaired, impeded or prejudiced aright of the moving party. Significantly, [the mother] must show that an alleged violation waswillful" (Matter of Omahen vOmahen, 64 AD3d 975, 977 [2009] [internal quotation marks and citations omitted]; see Matter of Lagano v Soule, 86AD3d 665, 666 [2011]; Matter ofHolland v Holland, 80 AD3d 807, 808 [2011]). Here, the father testified that he had hiscounsel contact the Family and Children's Society to arrange for counseling for thechildren.[FN*] When he learned from counsel that the agency, despite repeated attempts to contact it, had notresponded, the father, in an attempt to comply with the terms of Family Court's order, arrangedfor the children to be assessed by the Broome County Mental Health Department for counseling.Giving due deference to the court's credibility determination (see Matter of Fitzpatrick v Fitzpatrick, 77 AD3d 1108, 1109[2010]; Matter of Cobane v Cobane,57 AD3d 1320, 1321-1322 [2008], lv denied 12 NY3d 706 [2009]), we cannotconclude that Family Court erred in finding that the father had not willfully violated the custodyorder (see Matter of Cobane vCobane, 77 AD3d 1068, 1069 [2010], lv dismissed 16 NY3d 736 [2011]).
Rose, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The father, because of languagedifficulties, claimed that he required counsel's assistance to make the necessary arrangements forthe counseling.