| Matter of Krasner v Krasner |
| 2012 NY Slip Op 02500 [94 AD3d 763] |
| April 3, 2012 |
| Appellate Division, Second Department |
| In the Matter of Samuel Krasner, Appellant, v KarenKrasner, Respondent. |
—[*1] Amy L. Colvin, Huntington, N.Y., for respondent. Gail Jacobs, Great Neck, N.Y., attorney for the children.
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order ofthe Family Court, Nassau County (Singer, J.), dated September 20, 2010, which, after a hearing,denied his petition to modify the visitation provisions of an order of custody and visitation of thesame court dated October 6, 2008, and entered on the consent of the parties, by terminating themother's visitation.
Ordered that the appeal from so much of the order dated September 20, 2010, as pertained tothe parties' children David, Rachel, and Chana is dismissed as academic, without costs ordisbursements; and it is further,
Ordered that the order dated September 20, 2010, is reversed insofar as reviewed, on thefacts and in the exercise of discretion, without costs or disbursements, that branch of the petitionwhich was to modify the visitation provisions of the order of custody and visitation datedOctober 6, 2008, by terminating the mother's visitation with the child Daniel is granted, and themother's visitation with that child is terminated.
Since the parties' children David, Rachel, and Chana are now 18 years of age or older, theyare no longer subject to the order appealed from (see Matter of McMillian v Rizzo, 65 AD3d 689 [2009]; Matter of Sassower-Berlin v Berlin, 31AD3d 771, 771-772 [2006]).
In an order dated October 6, 2008, entered on the consent of the parties, the mother wasawarded, inter alia, supervised visitation with the subject child twice per month for three hours,with the supervision to be conducted by an individual who is mutually agreeable to the parties. Ina petition dated June 4, 2009, the father sought to modify the visitation provisions of that orderon the ground, inter alia, that the mother verbally abused the children during the supervisedvisits, causing a negative emotional impact on the subject child. After a hearing, the FamilyCourt denied the petition on the ground that the father failed to show a change in circumstances.[*2]
"Once a visitation order is entered, it may be modifiedonly 'upon a showing that there has been a subsequent change of circumstances and modificationis required' (Family Ct Act § 467 [b] [ii]) . . . [T]he 'standard ultimately to beapplied remains the best interests of the child when all of the applicable factors are considered' "(Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381 [2004], quotingFriederwitzer v Friederwitzer, 55 NY2d 89, 95 [1982]).
Here, although the abuse alleged in the petition took place prior to the entry of the orderdated October 6, 2008, and although there was evidence that the mother had actedinappropriately around the child during supervised visits that took place prior to the entry of thatorder, there was also evidence that the supervised visits that took place after the entry of thatorder were increasingly disruptive and caused the child to suffer increasing amounts of stress(see Matter of Wilson v McGlinchey, 2 NY3d at 381). Thus, the father made a sufficientshowing of a subsequent change of circumstances.
While we are mindful that visitation with the noncustodial parent is generally appropriateabsent "exceptional circumstances" (Matter of McLean v Simpson, 82 AD3d 1101, 1101 [2011][internal quotation marks omitted]), under the circumstances of this case, including the child'svehement opposition to any form of visitation with the mother and the recommendation of thecourt-appointed forensic examiner that the mother's visitation be terminated, we agree with thefather and the attorney for the child that the child's best interests would be served by thetermination of the mother's visitation with that child (see Matter of Murphy v Diem, 74 AD3d 814, 815 [2010]; Matter of Sassower-Berlin v Berlin, 58AD3d 635, 636 [2009]; Matter ofThomas v Thomas, 35 AD3d 868, 869 [2006]). Dillon, J.P., Leventhal, Belen and Lott,JJ., concur.