| Matter of Terwilliger v Jubie |
| 2011 NY Slip Op 03929 [84 AD3d 1520] |
| May 12, 2011 |
| Appellate Division, Third Department |
| In the Matter of Anne Terwilliger, Respondent, v Cally Jubie,Appellant. |
—[*1] Sandra M. Colatosti, Albany, attorney for the child.
Mercure, J.P. Appeal from an order of the Family Court of Greene County (Pulver, Jr., J.),entered June 23, 2010, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of visitation.
Petitioner is the paternal grandmother and respondent is the mother of the subject child (bornin 2004). After the child's father died, the grandmother applied for visitation pursuant toDomestic Relations Law § 72 (1), and Family Court granted her therapeutic, supervisedvisitation once a month. She sought to modify that order after the counselor who oversaw thevisitation, Kenneth Russell, opined that therapeutic visitation was no longer needed. FamilyCourt conducted a hearing, following which it directed unsupervised visitation and increased theamount of visitation to four hours a week. The mother appeals and we now affirm.
Initially, we reject the contention of the attorney for the child that the present appeal is mootdue to the issuance of a subsequent consent order that temporarily reimposed supervisedvisitation with the goal of facilitating implementation of the order on appeal. The consent orderhas since expired by its own terms. Thus, resolution of this appeal will have "immediate,practical consequences for the parties," and the matter is not moot (Saratoga County Chamberof Commerce v Pataki, 100 NY2d 801, 812 [2003], cert denied 540 US 1017 [2003];accord Matter of Kirk V., 5 NY3d840, 842 [2005]).[*2]
Turning to the merits, a court considering an applicationto modify a grandparent visitation order "look[s] first at whether there has been a change ofcircumstances," and the mother concedes that such a change has occurred here (Matter of Johnson v Zides, 57 AD3d1318, 1319 [2008]; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004]).The only question before us, then, is whether Family Court properly exercised its discretion indetermining the visitation schedule that would be in the best interests of the child (see Matter of Braswell v Braswell, 80AD3d 827, 830-831 [2011]; Matter of Johnson v Zides, 57 AD3d at 1319).
It is undisputed that the child enjoys visiting with the grandmother and that the interactionbetween them has improved significantly over time. As such, Russell opined that unsupervisedvisitation and an increase in the amount of visitation would be appropriate. The mothercomplains that Family Court disregarded Russell's suggestion that the grandmother haveassistance during visitation due to her age and alleged mobility issues. Russell admitted,however, that the grandmother may not need that assistance, and she testified that she had nomobility problems and cared for her other grandchildren without help. According deference toFamily Court's factual findings, we find the grant of unsupervised visitation to be supported by asound and substantial basis in the record and will not disturb it (see Linda R. v Ari Z., 71 AD3d465, 465-466 [2010]; Matter ofMark P. v Jamie Q., 64 AD3d 921, 922-923 [2009], lv denied 13 NY3d 706[2009]).
Lahtinen, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.