| Matter of Cobane v Cobane |
| 2010 NY Slip Op 07426 [77 AD3d 1068] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tina M. Cobane, Appellant, v Brian P. Cobane,Respondent. |
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Lahtinen, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.),entered June 11, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Court Act article 6, to hold respondent in violation of a prior order of custody andvisitation.
Family Court was fully familiar with the parties, who had previously appeared before it asthey quarreled over various aspects of the custody of their three children. In the currentproceeding, petitioner (hereinafter the mother) alleged that respondent (hereinafter the father)willfully violated various aspects of a March 2007 order, including denying her scheduledvisitation with the children. Following a hearing, Family Court, among other things, held that themother had failed to prove a willful violation and, accordingly, dismissed the petition. Themother appeals.
We affirm. Initially, as to the standard of proof used, although Family Court noted anapparent split of authority regarding the appropriate level of proof (compare Matter of Duane H. v Tina J.,66 AD3d 1148, 1149 [2009], withMatter of Rubackin v Rubackin, 62 AD3d 11, 13 [2009]), it specifically held that themother's proof was insufficient under either standard. Family Court found that the mother (aswell as the father) lacked credibility and, since the parties were the only ones to testify, thisdetermination provided—contrary to the mother's contention—an ample basis fordismissing her petition (see Matter of Bailey v Stringer, 251 AD2d 802, 803 [1998];cf. Matter of Jose L.I., 46 NY2d 1024, 1026 [1979]). Moreover, our review reveals that[*2]Family Court's credibility determination and its decision todismiss the petition are supported by the record. Finally, the mother's assertion that Family Courterred in the manner it conducted the hearing has been considered and found to lack merit.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.