| Matter of D'Angelo v Lopez |
| 2012 NY Slip Op 02734 [94 AD3d 1261] |
| April 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Cassandra May D'Angelo, Respondent, v GonzaloLopez, Appellant. (And Three Other Related Proceedings.) |
—[*1] Daniel Gartenstein, Kingston, for respondent. Jane M. Bloom, Rock Hill, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.),entered January 26, 2011, which, among other things, granted petitioner's application, in fourproceedings pursuant to Family Ct Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 2004). Although the child originally lived with the mother, in an October 2008order, entered on consent, the parties agreed to share joint legal custody of the child, with solephysical custody to the father, and the mother having supervised visitation time. As relevantherein, that order provided that the person supervising visitation would be "a third party to beagreed upon by the parties." Thereafter, the father's live-in girlfriend, Brittany Barr, begansupervising visitation and, while it appears that this arrangement originally operated relativelysmoothly, problems arose after the father and Barr would only agree to bring the child tosupervised visitation at fast food restaurants and playgrounds where Barr's friends would alsoattend with their children. According to the mother, in this hectic and distracting atmosphere, itwas difficult for her to hold the child's attention for any length of time so as to have meaningful[*2]visitation. After the mother's request for a different supervisorwas denied, she filed a petition, subsequently amended, seeking to modify the October 2008order to the extent that it would provide for visitation at her home under the supervision of eitherof two named friends. The parties then filed cross petitions seeking full custody, and the motheralso filed a violation petition. Following a hearing, Family Court granted the mother's request fora modification of the October 2008 order with respect to supervised visitation and dismissed allremaining petitions. The father appeals.[FN1]
We affirm. " 'As with custody, an existing visitation order will be modified only if theapplicant demonstrates a change in circumstances that reflects a genuine need for themodification so as to ensure the best interests of the child' " (Matter of Bunger v Barry, 88 AD3d 1082, 1082 [2011], quoting Matter of Taylor v Fry, 63 AD3d1217, 1218 [2009]). Here, while Family Court did not elaborate as to the basis of itsthreshold finding that a change of circumstances has been presented, our independent reviewconfirms the appropriateness of that ruling (see Matter of White v Cicerone, 80 AD3d 1102, 1103 [2011],lv denied 16 NY3d 711 [2011]). Aside from the obvious difficulties presented by theparties' disagreement over the choice of supervisor and location for visitation, the proof showed anecessity for change by reason of, among other things, the chaotic atmosphere of the visits wherethe child was often forced to choose between spending time with the mother or Barr and herfriends' children and the fact that the child began acting out and displaying anger over, amongother things, issues related to that visitation.
The child's best interests will be advanced by the relatively minor change in the supervisedvisitation order. Not only did the child's own counselor concede that there was a potentialconflict of interest with Barr as supervisor in close proximity to the child, but the record confirmsthat the constant presence of Barr—a person that the child considered to be a parentfigure—created loyalty conflicts that only served to create greater distance between themother and child (see generally Matter of Fish v Manning, 300 AD2d 932[2002]).[FN2]As for the choice of alternative supervisors, the court aptly noted that the father articulated noproblems with either individual, nor was any proof presented indicating that the proposedsupervisors would be unable to ensure the child's safety in the mother's home during visitation.Thus, upon review of all the testimony and proof, and deferring to Family Court's credibilitydeterminations (see Matter ofTerwilliger v Jubie, 84 AD3d 1520, 1521 [2011]), the determination that a modificationto the supervised visitation order was in the child's best interests has a sound basis in the record(see Matter of Fish v Manning, 300 AD2d at 933).
Rose, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Inasmuch as the father's briefaddresses only the modification to the October 2008 order pertaining to supervised visitation, anyremaining arguments with respect to Family Court's order are deemed abandoned (see Matter of Timothy N. v GwendolynN., 92 AD3d 1155, 1156 n [2012]).
Footnote 2: One witness testified that,during one visit, the child spent 25 minutes with her head in Barr's lap before she would evenacknowledge or respond to the mother's attempts to engage her interest.