| Matter of Peralta v Irrizary |
| 2012 NY Slip Op 00524 [91 AD3d 877] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of Dorcas Peralta, Appellant, v ThomasIrrizary et al., Respondents. |
—[*1] Thomas Irrizary and Lydia Hodge Irrizary, Florida, N.Y., respondents pro se. George E. Reed, Jr., White Plains, N.Y., attorney for the children.
In a proceeding pursuant to Family Court Act article 6 for grandparent visitation, thematernal grandmother appeals from (1) an order of the Family Court, Orange County (Kiedaisch,J.), dated June 7, 2011, which, after a hearing, dismissed her petition to modify a prior order ofsupervised visitation dated September 5, 2007, in effect, by substituting the New WindsorYWCA for Nellie Peralta as the entity designated to supervise visitation, and (2) an order of thesame court, also dated June 7, 2011, which, after a hearing, dismissed her separate petition, ineffect, to enforce a decision and order of this Court dated August 10, 2010, inter alia, awardingher monthly supervised visitation.
Ordered that the orders dated June 7, 2011, are reversed, on the law, without costs ordisbursements, the petitions are reinstated, and the matter is remitted to the Family Court, OrangeCounty, for a new hearing before a different Judge, to be held forthwith, and a new determinationof the petitions thereafter.
This proceeding involves grandparent visitation. An order of visitation dated September 5,2007, which was entered on the consent of the parties, awarded the petitioner, the maternalgrandmother (hereinafter the grandmother), supervised visitation with her two granddaughtersevery other month. However, visitation pursuant to that order occurred only once. Thegrandmother filed a modification petition, inter alia, to increase visitation to once per month. Inan order dated May 15, 2009, the Family Court denied that petition, vacated the prior order ofvisitation dated September 5, 2007, and dismissed the proceeding. The grandmother appealedfrom the order dated May 15, 2009. In a decision and order dated August 10, 2010, this Courtmodified the Family Court's order dated May 15, 2009. This court deleted the provisions thereofdenying that branch of the grandmother's petition which was to modify the order datedSeptember 5, 2007, to award her monthly visitation, vacating the order dated September 5, 2007,and dismissing the proceeding, and substituting therefor a provision awarding the grandmothermonthly supervised visitation (seeMatter of Peralta v Irrizary, 76 AD3d 561 [2010]). We concluded that, contrary to theFamily Court's determination, it was in the grandchildren's best interests to have monthlysupervised [*2]visitation with the grandmother (id. at562). We also noted that, "[b]y the parents' testimony at the hearing that they did not intend tocomply with the visitation order going forward, the parents have unilaterally determined after onevisit that, despite the existing visitation arrangement, they would no longer allow thegrandmother to visit with her grandchildren" (id.).
According to Nellie Peralta, the grandmother's sister, who had been appointed to supervisethe visitation, the parents continue to refuse to allow the grandmother to visit with thegrandchildren. The grandmother filed the two petitions that are the subject of this proceeding,both dated September 14, 2010. In one petition, the grandmother sought to modify the prior orderof visitation, dated September 5, 2007, in effect, by substituting the New Windsor YWCA forNellie Peralta as the entity designated to supervise visitation, as Nellie Peralta no longer wishedto serve in this capacity and was unavailable to supervise future visitation. In the other petition,the grandmother sought, in effect, to enforce the decision and order of this Court dated August10, 2010. Shortly after the commencement of a hearing, the Family Court granted the parents'motion, made at the close of the petitioner's case, to dismiss the petitions. In the orders appealedfrom, the Family Court dismissed both petitions, determining that, as to each petition, thegrandmother failed to establish a prima facie case. The grandmother appeals and we reverse bothorders.
"A visitation order may be modified upon a showing of sufficient change in circumstancessince the entry of the prior order such that modification is warranted to further the child's bestinterests" (Matter of Balgley vCohen, 73 AD3d 1038, 1038 [2010]; see Matter of Figueroa v Lewis, 81 AD3d 823, 823 [2011]; Matter of Shockome v Shockome, 53AD3d 618, 619 [2008]). Contrary to the Family Court's determination, the grandmotherestablished, prima facie, that there had been a sufficient change in circumstances such thatmodification of the prior order to substitute the New Windsor YWCA for Nellie Peralta as theentity designated to supervise visitation was warranted to further the grandchildren's bestinterests. However, since the parents moved to dismiss the petition, and the court granted theirmotion at the close of the petitioner's case, the parents did not present their case in opposition tothe modification petition.
Similarly, based on the evidence before the Family Court, as well as the background andhistory of the case with which the Family Court was fully familiar based on prior proceedings (cf. Matter of Jenna C. [Omisa C.], 81AD3d 941, 943 [2011]; Matter ofWeinschneider v Weinschneider, 73 AD3d 1194, 1195 [2010]; Matter of Jeffers v Hicks, 67 AD3d800, 801 [2009]; Matter of AttallahN., 65 AD3d 1047, 1048 [2009]), the grandmother satisfied her prima facie burden withregard to the petition, in effect, to enforce the decision and order of this Court dated August 10,2010 (see generally Matter of AlyssaL.D., 56 AD3d 1184, 1185 [2008]; Joye v Schechter, 118 Misc 2d 403, 410-411[1983]). The record establishes, prima facie, that the parents, in willful violation of prior courtorders, refuse to allow the grandmother to visit with the children.
Accordingly, we must remit the matter to the Family Court, Orange County, for a newhearing on the grandmother's petitions and a new determination thereafter. Under thecircumstances of this case, the hearing should be held before a different Judge.
The remaining contention of the attorney for the children need not be addressed at thisjuncture. Skelos, J.P., Dickerson, Austin and Miller, JJ., concur.