| Matter of Murphy v Diem |
| 2010 NY Slip Op 04793 [74 AD3d 814] |
| June 1, 2010 |
| Appellate Division, Second Department |
| In the Matter of John W. Murphy, Appellant, v Lisa M.Diem, Respondent. |
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In a proceeding pursuant to Domestic Relations Law § 72 for grandparent visitation,the petitioner maternal grandfather appeals, as limited by his brief, from so much of an order ofthe Supreme Court, Suffolk County (Kent, J.), dated April 17, 2009, as, after a hearing, deniedthat branch of his motion which was, in effect, to modify the parties' stipulation dated October 9,2007, so as to award him unsupervised visitation with the child, and terminated all visitationbetween him and the child.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
The subject child has been in the sole custody of her maternal grandmother since the childwas an infant, at which time the child's mother had been murdered. When the child was abouteight years old, the maternal grandfather, who had been divorced from the grandmother sincebefore the child's birth, commenced the instant proceeding seeking grandparent visitation. OnOctober 9, 2007, the parties stipulated, on the record, to therapeutic visitation between thegrandfather and the child, which stipulation was so-ordered. Over the next few months, the childand each of the parties separately met with a therapist in preparation for the therapeutic visitationbetween the child and the grandfather.
In March 2008 the grandfather and the child had their first therapeutic visit together.Thereafter, the grandmother cancelled the next therapeutic visit until she could meet privatelywith the therapist and discuss her various concerns over the grandfather's conduct during the firstvisit. Upon learning of the cancellation, the grandfather moved, inter alia, in effect, to modify theparties' stipulation so as to award him unsupervised visitation on the ground that he anticipatedthat the grandmother would interfere with future therapeutic visitation. The Supreme Court, aftera hearing, denied the grandfather's motion and, in effect, modified the October 2007 stipulationand terminated all visitation between the grandfather and the child.
Since custody and visitation determinations "necessarily depend[ ] to a great extent [*2]upon an assessment of the character and credibility of the partiesand witnesses, deference is accorded the court's findings. Therefore, its findings should not beset aside unless they lack a sound and substantial basis in the record" (Matter of Elliott v Felder, 69 AD3d623 [2010] [citation omitted]; seeMatter of Harris v Carter, 66 AD3d 780 [2009]). Contrary to the grandfather'scontentions, although the Supreme Court did not specifically address in its order whether therehad been a change in circumstances subsequent to the stipulation, the record and the SupremeCourt's discussion of the pertinent facts in its memorandum decision demonstrate that there was,in fact, a change of circumstances justifying a modification of the stipulation (see Matter ofWilson v McGlinchey, 2 NY3d 375 [2004]; Goldstein v Goldstein, 68 AD3d 717, 720 [2009]; Matter of Johnson v Zides, 57 AD3d1318 [2008]). The Supreme Court noted that the grandfather had an "unsatiable andobsessive desire to inform the subject child of her family's tragic past," that during the firsttherapeutic meeting, the grandfather, inter alia, engaged in "ill suited conversation with hisgrandchild, which was largely centered around Tara, his deceased daughter and the mother of thesubject child," and that the grandfather's "behavior in the one meeting with [the child]demonstrated that he is seeking to explain to [the child] the circumstances surrounding hermother's death, rather than attempting to establish a grandparent/grandchild relationship" (seeMatter of Wilson v McGlinchey, 2 NY3d 375 [2004]). Moreover, there is evidence in therecord that, after the meeting, the child was distressed and suffered adverse health. Under thecircumstances, the Supreme Court's order, which is consistent with the position of the attorneyfor the child, has a sound and substantial basis in the record and will not be disturbed (see Matter of Verret v Verret, 37AD3d 479 [2007]). The Supreme Court providently exercised its discretion in determiningthat visitation with the grandfather was not in the best interests of the child (see Matter ofWilson v McGlinchey, 2 NY3d 375 [2004]; Matter of Decoursy v Poplawski, 61 AD3d 974 [2009]; Matter of Johnson v Zides, 57 AD3d1318 [2008]; Matter of Gold vGold, 53 AD3d 485, 488 [2008]). Mastro, J.P., Santucci, Chambers and Roman, JJ.,concur.