| Matter of Sepulveda v Perez |
| 2011 NY Slip Op 09655 [90 AD3d 1057] |
| December 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Grissel M. Sepulveda,Appellant, v Benjamin Perez, Respondent. |
—[*1] Daniel E. Lubetsky, Jamaica, N.Y., attorney for the child.
In related proceedings pursuant to Family Court Act article 6 and a family offense proceedingpursuant to Family Court Act article 8, the mother appeals from an order of the Family Court,Queens County (Richroath, J.), dated January 28, 2010, which, after a hearing, in effect, (1)granted the father's motion to dismiss, inter alia, her family offense petition, (2) modified a priororder of visitation of the same court dated April 30, 2004, so as to require that the mother'svisitation with the subject child be supervised, and (3) granted that branch of the motion of theattorney for the child which was to prohibit her from engaging in any communications with themedia about this case, about the respondent, or about the subject child, and to prohibit her fromproviding any personal information relating to the subject child to any Web site or Internetlocation.
Ordered that the order dated January 28, 2010, is modified, on the law and the facts, bydeleting the provision thereof granting that branch of the motion of the attorney for the childwhich was to prohibit her from engaging in any communications with the media about this case,about the respondent, or about the subject child, and to prohibit her from providing any personalinformation relating to the subject child to any website or Internet location, and substitutingtherefor a provision denying that branch of the motion; as so modified, the order dated January28, 2010, is affirmed, without costs or disbursements.
"The determination of whether a family offense was committed is a factual issue to beresolved by the Family Court, and that court's determination regarding the credibility ofwitnesses is entitled to great weight on appeal and will not be disturbed if supported by therecord" (Matter of DosReis vRousseau, 85 AD3d 1028, 1029 [2011] [internal quotation marks omitted]; see Matter of Richardson v Richardson,80 AD3d 32 [2010]; see Matter ofLuke v Luke, 72 AD3d 689 [2010]). Here, the Family Court was presented with sharplyconflicting testimony as to whether the father harassed the mother. The Family Court'sdetermination that the mother failed to establish that a family offense was committed was basedupon its assessment of the credibility of the parties, and is supported by the record (see Matter of DosReis v Rousseau, 85AD3d 1028 [2011]; Matter ofRichardson v Richardson, 80 AD3d 32 [2010]). Accordingly, we decline to disturb theFamily Court's determination.
Furthermore, contrary to the mother's contention, the Family Court did not err in modifying aprior order of visitation so as to require that her visitation with the child be supervised withoutconducting a hearing on that issue. Once a visitation order is entered, it may be modified onlywhere "there has been a subsequent change of circumstances and modification is required"(Family Ct Act § 467 [b]; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380[2004]). Although, in [*2]general, an evidentiary hearing isnecessary regarding a modification of visitation, "a hearing will not be necessary where the courtpossesses adequate relevant information to enable it to make an informed and providentdetermination as to the child's best interest" (Matter of Hom v Zullo, 6 AD3d 536 [2004]; see Matter of Lamarche v Jessie, 74AD3d 1341, 1341-1342 [2010]). Here, in light of, inter alia, the parties' numerous courtappearances and submissions, and the Family Court's near-constant supervision of this matter, weconclude that the Family Court possessed sufficient information to render an informeddetermination consistent with the best interests of the child. Furthermore, the record supports afinding that modification of the prior visitation order so as to require that the mother's visitationwith the child be supervised was not an improvident exercise of discretion (see Matter of Luis O. v Jessica S., 89AD3d 735 [2011]; Matter of Jeffersv Hicks, 67 AD3d 800, 801 [2009]; Matter of Attallah N., 65 AD3d 1047, 1048 [2009]; Matter of Perez v Sepulveda, 51 AD3d673, 673-674 [2008]; Matter of Hom v Zullo, 6 AD3d at 536; see also Matter of Minus v Lannaman,81 AD3d 830, 831 [2011]; Constantin v Wicks, 108 AD2d 715 [1985]).
However, the Family Court erred in granting that branch of the motion of the attorney for thechild which was to prohibit the mother from engaging in any communications with the mediaabout this case, about the respondent, or about the subject child, and to prohibit her fromproviding any personal information relating to the subject child to any website or Internetlocation (see Matter of Anonymous v Anonymous, 203 AD2d 283 [1994]; cf. Matterof Katherine B., 189 AD2d 443 [1993]; Matter of National Broadcasting Co. vCooperman, 116 AD2d 287 [1986]; Matter of Markfield v Association of Bar of City ofN.Y., 49 AD2d 516 [1975]). Although we recognize that communications or disclosuresmade by the mother which are inconsistent with the best interests of the child would serve tosupport the additional curtailment of the mother's parental rights or the issuance of an orderlimiting her communications (see e.g.Matter of Luis O. v Jessica S., 89 AD3d 735 [2011]; Matter of Greene v Gordon, 7 AD3d 528, 529 [2004]), our reviewof the record before us indicates that the attorney for the child failed to adduce sufficientevidence to justify such relief at this time.
The mother's remaining contentions are without merit. Mastro, A.P.J., Chambers, Austin andMiller, JJ., concur.