| Matter of James M. v Kevin M. |
| 2012 NY Slip Op 06958 [99 AD3d 911] |
| October 17, 2012 |
| Appellate Division, Second Department |
| In the Matter of James M., Appellant, v Kevin M. et al.,Respondents. (Proceeding No. 1.) In the Matter of Jennifer M. et al., Appellants, v Kevin M. etal., Respondents. (Proceeding No. 2.) In the Matter of Jennifer M., Appellant, v Kevin M. et al.,Respondents. (Proceeding No. 3.) In the Matter of Kevin M., Respondent, v Jennifer M. et al.,Appellants. (Proceeding Nos. 4 and 5.) |
—[*1] Carol Kahn, New York, N.Y., for appellant Jennifer M. Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for respondents. Clara H. Lipinsky, Pine Island, N.Y., attorney for the child Austyn M.-M. Paul I. Weinberger, Poughkeepsie, N.Y., attorney for the child Jaymes M.-M.
In related guardianship and visitation proceedings pursuant to Family Court Act article 6, themother and the father separately appeal, as limited by their respective briefs, from so much of anorder of the Family Court, Dutchess County (Forman, J.), dated March 28, 2011, as, after ahearing, upon granting their separate petitions to modify a visitation order of the same courtdated November 4, 2009, by awarding them expanded unsupervised visitation with the childAustyn M.-M., in effect, denied their requests for overnight visitation.
Ordered that the order dated March 28, 2011, is affirmed insofar as appealed from, [*2]with costs.
The mother and the father are parents of two children, Austyn and Jaymes. Since his birth,Austyn has been in the care and custody of the maternal grandfather, Kevin M., Austyn's legalguardian. Jaymes, after being removed from the care of the mother and father at birth and placedin foster care, was subsequently returned to the mother and father. By November 2009, themother and father had full custody of Jaymes and, pursuant to an order of the Family Court datedNovember 4, 2009, the mother and father were awarded unsupervised visitation with Austynonce a month for up to eight hours.
The mother and father both filed petitions to modify the order of visitation dated November4, 2009, to permit a "more traditional visitation schedule" and overnight visitation with Austyn.A hearing was held on the petitions before the Family Court, at which the mother, father,maternal grandfather, and maternal step-grandmother testified. At the close of all the testimony,the Family Court, inter alia, granted the mother's and father's modification petitions and awardedthem an additional eight hours of unsupervised visitation with Austyn every other month. TheFamily Court, in effect, denied the mother's and father's requests for overnight visitation. Themother and the father appeal.
An existing visitation arrangement may be modified only "upon a showing that there hasbeen a subsequent change of circumstances and modification is required" (Family Ct Act §467 [b] [ii]; see Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381 [2004]; Matter of Boggio v Boggio, 96 AD3d834 [2012]; Galanti v Kraus, 85AD3d 723, 724 [2011]). The paramount concern in any custody or visitation determinationis the best interests of the child, under the totality of the circumstances (see Matter of Wilsonv McGlinchey, 2 NY3d at 380-381; Eschbach v Eschbach, 56 NY2d 167, 172[1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 96 [1982]; Matter of Boggio v Boggio, 96 AD3d834 [2012]; Galanti v Kraus, 85 AD3d at 724). Since custody and visitationdeterminations "necessarily depend[ ] to a great extent upon an assessment of the character andcredibility of the parties and witnesses, deference is accorded the court's findings. Therefore, itsfindings should not be set aside unless they lack a sound and substantial basis in the record" (Matter of Elliott v Felder, 69 AD3d623 [2010] [citation omitted]).
Although, as a general rule, determinations regarding custody and related matters should bemade after a full evidentiary hearing (see e.g. Matter of Brooks v Brooks, 255 AD2d 382,383 [1998]), here, the mother and the father consented to the Family Court conducting only a"mini-trial," thus waiving their right to a full evidentiary hearing (see Matter of Aquino v Antongiorgi, 92AD3d 780, 781 [2012]; Matter of Goldman v Goldman, 201 AD2d 860, 862 [1994];cf. Matter of Richmond v Perez, 38AD3d 782, 783-784 [2007]). In any event, a full evidentiary hearing was not necessary inthis case, since the Family Court possessed sufficient information to render an informed decisionconsistent with the best interests of the children based on its extensive history with the parties (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]).
Contrary to the contention of the mother and the father, the Family Court properly consideredthe totality of the circumstances, and its determination was supported by a sound and substantialbasis in the record. Thus, the court's determination will not be disturbed (see Matter of Davis v Pignataro, 97AD3d 677 [2012]; Matter ofSolovay v Solovay, 94 AD3d 898 [2012]; Matter of Jackson v Coleman, 94 AD3d 762 [2012]). Skelos, J.P.,Leventhal, Chambers and Lott, JJ., concur.