| Matter of Awan v Awan |
| 2010 NY Slip Op 06166 [75 AD3d 597] |
| July 20, 2010 |
| Appellate Division, Second Department |
| In the Matter of Aamir Awan, Appellant, v Paras Awan,Respondent. |
—[*1] Adam E. Small, Merrick, N.Y., for respondent. Robert C. Mitchell, Riverhead, N.Y. (Diane B. Groom of counsel), attorney for thechild.
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order ofthe Family Court, Suffolk County (Tarantino, Jr., J.), dated November 11, 2009, which, after ahearing, inter alia, granted the mother's petition to enforce a provision of a custody and visitationorder of the same court dated March 14, 2008, and, in effect, denied his motion to modify certainprovisions of the order dated March 14, 2008.
Ordered that the appeal from so much of the order as granted that branch of the petitionwhich was to enforce the provision of the order dated March 14, 2008, so as to permit the motherto travel to Pakistan with the subject child in late 2009 and directed the father to execute adocument permitting the child to obtain a passport is dismissed as academic, without costs ordisbursements; and it is further,
Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.
Shortly after the subject child's birth, the parties separated. They eventually negotiated asettlement agreement that provided, inter alia, for joint custody with residential custody to themother and visitation to the father. Pursuant to an order of the Family Court dated March 14,2008, which embodied the terms of the settlement agreement, the mother was permitted to traveloutside of the United States with the child after obtaining medical clearance for the child totravel. The father failed or refused to execute the passport documents necessary for the child totravel out of the country. The mother then petitioned the Family Court for an order enforcing theprior order and the father moved to modify certain provisions of the prior order so as to prohibitthe mother from taking the subject child out of the country.
The father's appeal from so much of the order as, in effect, granted the mother permission totravel to Pakistan with the child in late 2009 and directed him to execute a document permittingthe child to obtain a passport has been rendered academic, as that trip already has occurred(see Delor Corp. v Quigley, Langer, Hames, Perlmutter, Mankes & Nuskind,Partnership, [*2]287 AD2d 680, 682 [2001]; Children'sVil. v Greenburgh Eleven Teachers' Union Fedn. of Teachers, Local 1532, AFT, AFL-CIO,249 AD2d 433, 434 [1998]).
The appeal from so much of the order as, in effect, denied the father's motion to modifycertain provisions of the order dated March 14, 2008, so as to prohibit all foreign travel is notacademic (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).However, in order to obtain modification of a custody order or arrangement to which the partiesvoluntarily agreed, the movant must show that there has been a significant change incircumstances since the original agreement, and that modification is in the best interests of thechild (see Matter of Penn v Penn,41 AD3d 724 [2007]; Matter ofBattista v Fasano, 41 AD3d 712, 713 [2007]; DiVittorio v DiVittorio, 36 AD3d 848, 849 [2007]; Matter of Feliciano vMicheli-Hartford, 35 AD3d 739 [2006]). The father did not demonstrate his entitlementto modification of the original order (see Matter of Rodriguez v Hangartner, 59 AD3d 630, 631 [2009];Matter of Faltings v Faltings, 35AD3d 464, 465 [2006]; Matter of Smith v DiFusco, 282 AD2d 753 [2001]; cf. Matter of Ganzenmuller v Rivera,40 AD3d 756, 757 [2007]).
The Family Court did not err in striking the testimony of Dr. Ronald Jacobson, an expertretained by the father, and in precluding further testimony by Dr. Jacobson. The father's attorneyviolated the Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2 by allowing aphysician, whom the attorney retained or caused the father to retain, to interview and examinethe subject child regarding the pending dispute and to prepare a report without the knowledge orconsent of the attorney for the child (seeCampolongo v Campolongo, 2 AD3d 476, 476-477 [2003]). "The appointment of an[attorney for the child] to protect the interests of a child creates an attorney-client relationship,and the absence of the [attorney for the child] at the subject [examination and] interviewconstituted a denial of the child's due process rights" (id. at 476-477, citing Matter ofSamuel H. [Matter of New York City Dept. of Social Servs. (Luz S.)], 208 AD2d 746, 747[1994]; Family Ct Act § 241). Further, the father's attorney also failed to inform themother's attorney of that examination. Skelos, J.P., Hall, Roman and Sgroi, JJ., concur.