| Matter of Aquino v Antongiorgi |
| 2012 NY Slip Op 01250 [92 AD3d 780] |
| February 14, 2012 |
| Appellate Division, Second Department |
| In the Matter of Ramon M. Aquino, Respondent, v JaclynF. Antongiorgi, Appellant. (Proceeding Nos. 1 and 2.) In the Matter of Jaclyn F. Antongiorgi,Appellant, v Ramon M. Aquino, Respondent. (Proceeding Nos. 3 and4.) |
—[*1] Michael R. Varble, Poughkeepsie, N.Y., for respondent. Neal D. Futerfas, White Plains, N.Y., attorney for the children.
In related visitation and family offense proceedings pursuant to Family Court Act articles 6and 8, the mother appeals, as limited by her brief, from so much an order of the Family Court,Dutchess County (Forman, J.), dated January 19, 2011, as, after a limited hearing, in effect,denied her petition, in effect, to modify an order of the same court dated November 4, 2009,awarding the father sole custody of the parties' children with certain visitation to her, so as toaward her sole custody of the children, denied those branches of her separate petition whichwere, in effect, to modify the same order so as to award her sole custody of the children and todirect that the children attend therapy, and directed that "[n]o petition requesting additionalvisitation by the mother shall be accepted by the court until the [attorney for the children] hasapproved of such a request."
Ordered that the order dated January 19, 2011, is modified, on the law, by deleting theprovision thereof directing that "no petition requesting additional visitation by the mother shallbe accepted by the court until the attorney for the children has approved of such a request;" as somodified, the order dated January 19, 2011, is affirmed insofar as appealed from, without costs ordisbursements.
Contrary to the mother's contention, the Family Court's determination, in effect, that it wouldnot be in the best interests of the children for it to modify a prior order awarding the father solecustody of the parties' children so as to award her sole custody, has a sound and substantial basisin the record and, accordingly, will not be disturbed (see Matter of Arduino v Ayuso, 70 AD3d 682 [2010]; [*2]Matterof Mohabir v Singh, 63 AD3d 1159, 1159 [2009]; Matter of Perez v Martinez, 52 AD3d 518, 519 [2008]). Although,as a general rule, determinations regarding custody and related matters should be made after afull evidentiary hearing (see e.g. Matter of Brooks v Brooks, 255 AD2d 382, 383 [1998]),here, the mother consented to the Family Court's so-called "mini-hearing" procedure, thuswaiving her right to a full evidentiary hearing (see Matter of Goldman v Goldman, 201AD2d 860, 862 [1994]; cf. Matter ofRichmond v Perez, 38 AD3d 782, 783-784 [2007]). In any event, a full evidentiaryhearing was not necessary, since the Family Court possessed sufficient information to render aninformed decision consistent with the best interests of the children (see Matter of Peluso v Kasun, 78AD3d 950, 950-951 [2010]; Matterof Hom v Zullo, 6 AD3d 536 [2004]; see also Matter of Weinschneider v Weinschneider, 73 AD3d 1194,1195 [2010]).
We agree, however, with the mother's contention that the Family Court erred in directing that"[n]o petition requesting additional visitation by the mother shall be accepted by the court untilthe [attorney for the children] has approved of such a request" (see Matter of Mackenzie M. v Mary U.,38 AD3d 1249, 1250 [2007]; Matter of Shreve v Shreve, 229 AD2d 1005, 1006[1996]). We note that the alternatives to that provision proposed by the father and the attorney forthe children in their respective briefs also would be improper (see generally Matter of Williams vO'Toole, 4 AD3d 371, 372 [2004]; Matter of Adam H., 195 AD2d 1074, 1075[1993]; cf. Vogelgesang vVogelgesang, 71 AD3d 1132, 1134 [2010]). Mastro, A.P.J., Angiolillo, Eng and Cohen,JJ., concur.