| Matter of Flangos v Flangos |
| 2010 NY Slip Op 00850 [70 AD3d 691] |
| February 2, 2010 |
| Appellate Division, Second Department |
| In the Matter of Paul Flangos, Appellant, v Elise GoldsteinFlangos, Respondent. |
—[*1] Pamela Howard, White Plains, N.Y. (Joanne N. Sirotkin of counsel), for respondent. Eve Bunting-Smith, White Plains, N.Y., attorney for the children.
In related visitation proceedings pursuant to Family Court article 6, the father appeals froman order of the Family Court, Westchester County (Klein, J.), entered May 1, 2009, which,without a hearing, granted the mother's motion to dismiss the petition for supervised visitation.
Ordered that the order is affirmed, without costs or disbursements.
The father and the mother have three sons. After a trial in the Integrated Domestic ViolencePart of the Supreme Court, Westchester County, regarding family offenses which included thefather's verbal assaults on the parties' children and threatening and intimidating behavior, theSupreme Court, inter alia, issued a five-year order of protection entered July 18, 2006, whichprecluded the father from having any contact with the mother and the children. On September19, 2006, the court entered an order awarding the mother sole legal and physical custody andsuspended the father's visitation.
After the father was convicted of criminal charges of misdemeanor and felony criminalcontempt for violating the terms of the order of protection and sentenced to a period ofincarceration, the order of protection was extended for an additional period of five years. Thefather was released from incarceration after 16 months and commenced these Family Courtarticle 6 proceedings, requesting supervised visitation with his children.
"In general, an evidentiary hearing is necessary regarding modification of visitation" (Matter of Perez v Sepulveda, 51 AD3d673, 673 [2008]). However, "[o]ne who seeks a change in visitation is not automaticallyentitled to a hearing but must make a sufficient evidentiary showing of a material change ofcircumstances to warrant a hearing" (Matter of Reilly v Reilly, 64 AD3d 660, 660 [2009]). Here, theFamily Court had before it a complete record of the father's longstanding abusive conduct andpatent disregard for his children's well being, dating back to the family offense petitions filed in2003 and 2004, and the October 2006 supporting depositions underlying the father's convictionsfor contempt, which demonstrated [*2]his persistent inability tocontrol himself despite the obvious and egregious detriment to his children's well being. TheFamily Court also had before it the report of the forensic evaluator who diagnosed the father ashaving severe psychological disorders, and expressly recommended against granting the veryrelief which the father requests, i.e., permitting him visitation merely because he attendedtherapy. Similarly unavailing is the father's contention that his completion of a 16-month periodof incarceration entitled him to supervised visitation. Under these circumstances, the father failedto make the requisite evidentiary showing sufficient to establish the need for a hearing (see Matter of Reilly v Reilly, 64 AD3d660 [2009]; Matter of Rodriguez vHangartner, 59 AD3d 630 [2009]; Matter of Potente v Wasilewski, 51 AD3d 675 [2008]; Matter of Hongach v Hongach, 44AD3d 664 [2007]).
The father's remaining contention is without merit.
Accordingly, the Family Court properly dismissed, without a hearing, the father's petition forsupervised visitation. Skelos, J.P., Dickerson, Eng and Sgroi, JJ., concur.