| Matter of Peralta v Irrizary |
| 2010 NY Slip Op 06374 [76 AD3d 561] |
| August 10, 2010 |
| Appellate Division, Second Department |
| In the Matter of Dorcas Peralta, Appellant, v ThomasIrrizary et al., Respondents. |
—[*1] Levinson, Reineke & Ornstein, P.C., Central Valley, N.Y. (Justin E. Kimple of counsel), forrespondents. George E. Reed, Jr., White Plains, N.Y., attorney for the children.
In a proceeding, inter alia, pursuant to Family Court Act article 6 for grandparent visitation,the maternal grandmother appeals, as limited by her brief, from so much of an order of theFamily Court, Orange County (Kiedaisch, J.), dated May 15, 2009, as, after a hearing, denied herpetition to modify a prior order of visitation of the same court, entered on consent of the partieson September 6, 2007, vacated that order, and dismissed the proceeding.
Ordered that the order dated May 15, 2009, is modified, on the law and the facts, by deletingthe provisions thereof denying that branch of the maternal grandmother's petition which was foran order modifying the order entered September 6, 2007, so as to award her monthly visitation,vacating the order entered September 6, 2007, and dismissing the proceeding, and substitutingtherefor a provision granting the maternal grandmother's petition to the extent of modifying theorder entered September 6, 2007, so as to award her monthly supervised visitation; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
A prior order of visitation was entered on consent of the parties, awarding the maternalgrandmother supervised visitation with her two granddaughters every other month. However, itis undisputed that visitation pursuant to this order occurred on only one occasion. The maternalgrandmother filed the instant petition, seeking to modify the prior order of visitation so as toincrease visitation to once per month, and for additional visits to make up for those visits that shewas deprived of in abrogation of the prior order of visitation.
"In order to modify an existing custody or visitation arrangement, there must be a showingthat there has been a change in circumstances such that modification is required to protect thebest interests of the child" (Matter ofArduino v Ayuso, 70 AD3d 682, 682 [2010]; see Matter of Quinones v Ibarrondo, 67 AD3d 686, 686 [2009])."The best interests of the child are determined by an examination of the totality of thecircumstances" (Matter of Arduino v Ayuso, 70 AD3d at 682; see Eschbach vEschbach, 56 NY2d 167, 172 [1982]).[*2]
Here, the grandmother established that there has beensuch a change of circumstances. By the parents' testimony at the hearing that they did not intendto comply with the visitation order going forward, the parents have unilaterally determined afterone visit that, despite the existing visitation arrangement, they would no longer allow thegrandmother to visit with her grandchildren (cf. Goldstein v Goldstein, 68 AD3d 717, 720 [2009]; Matter ofLe Blanc v Morrison, 288 AD2d 768, 770 [2001]; Matter of Markey v Bederian, 274AD2d 816, 817 [2000]). Contrary to the Family Court's determination, we find that it is in thegrandchildren's best interests to have once monthly supervised visitation with the grandmother(cf. Matter of Wilson v McGlinchey, 2 NY3d 375 [2004]).
The appellant's remaining contention is without merit. Skelos, J.P., Santucci, Dickerson andLeventhal, JJ., concur.