| Matter of Klee v Schill |
| 2012 NY Slip Op 04244 [95 AD3d 1599] |
| May 31, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Rhonda Klee, Respondent, v TawnySchill, Respondent, and Johnnie Moore, Appellant. (And Another RelatedProceeding.) |
—[*1] Robert D. Siglin, Elmira, for Rhonda Klee, respondent. Francisco P. Berry, Ithaca, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered April 25, 2011, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Court Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the mother) and respondent Johnnie Moore (hereinafter the father) arethe parents of one child (born in 2004). As a result of the incarceration of the mother and thefather for various periods of time, the child has been in the care of respondent Tawny Schill sincehe was six months old. The child had limited contact with the father while the father wasincarcerated and, upon the father's release from incarceration, had gradually increased visitationtime, with overnight visits commencing in March or April 2010. In May 2010, the partiesstipulated to a visitation order, entered June 7, 2010, which, among other things, provided thatthe father would have visitation with the child every Wednesday evening and on alternateweekends. On June 18, 2010, the mother commenced the first of the instant proceedings against[*2]the father and Schill,[FN1]seeking to modify the prior visitation order based on the mother's allegations that, among otherthings, the child was exhibiting aggressive and unruly behavior as a result of visiting the father,necessitating that the child enroll in counseling. The father thereafter commenced the second ofthese proceedings against the mother and Schill, alleging that they had violated the terms of theorder by interfering with his visitation.
At the initial appearance on the petitions, Family Court scheduled an in camera interview tobe conducted prior to the commencement of the fact-finding hearing in order to assist the court indetermining what, if any, visitation between the father and the child would be appropriatepending a decision on the petitions. Following a fact-finding hearing conducted on two separatedates over a period of approximately six months, in which the mother, the father and Schilltestified, Family Court rendered a decision and order modifying the prior visitation order. Thenew order initially provided for, among other things, therapeutically supervised visitationbetween the father and the child and that, following therapeutic intervention and evaluationregarding the resumption of supervised or unsupervised visitation, any party could petition thecourt for a determination of the child's best interests with regard to future visitation. The fathernow appeals[FN2]and we affirm.
It is well settled that "[a] petitioner seeking to modify an existing visitation order mustdemonstrate 'a change in circumstances that reflects a genuine need for the modification so as toensure the best interests of the child' " (Matter of Sumner v Lyman, 70 AD3d 1223, 1224 [2010], lvdenied 14 NY3d 709 [2010], quoting Matter of Taylor v Fry, 63 AD3d 1217, 1218 [2009]; accord Matter of White v Cicerone, 80AD3d 1102, 1103 [2011], lv denied 16 NY3d 711 [2011]). We discern no error inFamily Court's determination that there had been a change in circumstances warrantingmodification of the prior visitation order, notwithstanding the short period of time that elapsedbetween entry of the prior order and commencement of the instant proceeding.[FN3]The mother testified at the fact-finding hearing that, while the child initially responded well toovernight visits at the father's home, as time progressed, the child became agitated when it wastime to leave to visit the father to the point where he was "kicking and screaming" in an effort toresist. She further testified that the child began displaying aggressive behavior toward objects,animals and other children after visiting with the father. As a result of this behavior, the motherenrolled the child in counseling.
Schill's testimony corroborated that of the mother with regard to the child's aggressivebehavior and indicated that the child had reported being injured in altercations with his older halfsiblings at his father's home. She also testified that the father had upset the child by engaging in[*3]an ongoing conflict over the fact that the child did not use thefather's surname. In addition, Schill testified that the child has significant difficulty adjusting tochange and becomes easily stressed and agitated by deviations from his normal routine.
In contrast, the father testified that the child had exhibited no signs of distress during thevisits and attributed the mother's request for a modification of the visitation order to an argumentwhich had taken place just prior to her filing of the instant petition and to a general desire on herpart to limit his contact with the child. Family Court clearly accorded limited credibility to suchtestimony. Moreover, the father's testimony established that he had refused to participate in thechild's counseling because he did not feel that he had done anything wrong and that he had notvisited with the child, nor made any attempt to attend the child's sporting events or to remaininformed about the child's health or education, and made minimal efforts to communicate withthe child during the approximately nine months between the filing of the mother's petition andthe conclusion of the fact-finding hearing.[FN4]
The foregoing evidence, indicating, among other things, that "the desire of the [child] to visitthe noncustodial parent has changed[,]" established a sufficient change in circumstances sinceentry of the prior order (Matter ofBrown v Erbstoesser, 85 AD3d 1497, 1499 [2011]; see Matter of Burch v Willard, 57 AD3d 1272, 1273 [2008];Matter of Bowers v Bowers, 266 AD2d 741, 742 [1999]). According due deference toFamily Court's credibility assessments and upon our review of the transcript of the court's incamera interview of the child, we also find a sound and substantial basis in the record for thecourt's determination that the best interests of the child will be served by requiring, at leastinitially, that the father's visitation be therapeutically supervised and we, therefore, decline todisturb it (see Matter of Nicole J.R. vJason M.R., 81 AD3d 1450, 1451 [2011], lv denied 17 NY3d 701 [2011]; Matter of Braswell v Braswell, 80AD3d 827, 831 [2011]; Matter ofFlood v Flood, 63 AD3d 1197, 1198 [2009]).[FN5]
We have reviewed the father's remaining contentions and find them to be either unpreservedor lacking in merit.
Mercure, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The mother was then residingwith Schill and the child.
Footnote 2: Family Court also found that themother had willfully violated the June 2010 order, but imposed no penalties as a result thereof.The father raises no argument with respect to this issue in his appellate brief.
Footnote 3: We note that we accord lessweight to an arrangement based on a stipulation than to one resulting from a judicialdetermination after a hearing (see Matterof Hayward v Thurmond, 85 AD3d 1260, 1261 [2011]; Matter of Miosky v Miosky, 33 AD3d1163, 1166-1167 [2006]).
Footnote 4: While such postpetition conductmay not be considered in determining whether there was a change in circumstances, it wasrelevant to a determination of the child's best interests in fashioning a new visitation order.
Footnote 5: Although not determinative, thisconclusion is in accord with the position of the attorney for the child (see Matter of Braidyn NN. [CharlesOO.], 88 AD3d 1218, 1220 [2011]).