| Matter of Myers v Anderson |
| 2012 NY Slip Op 08015 [100 AD3d 906] |
| November 21, 2012 |
| Appellate Division, Second Department |
| In the Matter of Major Myers, Appellant, v BeckieAnderson, Respondent. (Proceeding No. 1.) In the Matter of Beckie Anderson, Respondent, vMajor Myers, Appellant. (Proceedings No. 2 and 3.) |
—[*1] Lisa Goldman, White Plains, N.Y., for respondent. David J. Peck, Harrison, N.Y., attorney for child.
In related custody and visitation proceedings pursuant to Family Court Act article 6, thefather appeals, as limited by his brief, from so much of an order of the Family Court, WestchesterCounty (Greenwald, J.), dated September 14, 2011, as, after a hearing, in effect, granted thatbranch of the mother's petition which was to modify an order of custody and visitation of thesame court dated September 16, 2003, so as to award him visitation with the subject child foronly two hours every other weekend in a public place.
Ordered that the order dated September 14, 2011, is affirmed insofar as appealed from,without costs or disbursements.
"Modification of an existing custody or visitation arrangement is permissible only upon ashowing that there has been a change in circumstances such that a modification is necessary toensure the continued best interests and welfare of the child" (Matter of Mazzola v Lee, 76 AD3d 531, 531 [2010] [citation andinternal quotation marks omitted]; seeMatter of Boggio v Boggio, 96 AD3d 834, 835 [2012]). " '[T]he determination ofvisitation is within the sound discretion of the hearing court based upon the best interests of thechild, and its determination will not be set aside unless it lacks a substantial basis in the record' "(Matter of McLean v Simpson, 82AD3d 1101, 1101 [2011], quoting Matter of Kachelhofer v Wasiak, 10 AD3d 366, 366 [2004]; see Matter of Smith v Smith, 92 AD3d791, 792 [2012]). Generally, visitation should be decided after a full evidentiary hearing todetermine the best interests of the children. However, a hearing is not necessary where the courtpossesses adequate relevant information to make an informed determination of the children's bestinterests (see Matter of Ciara B.[Edward T.—Alba B.], 96 AD3d 833, 834 [2012]; Matter of Johnson v Alaji, 74 AD3d1202, 1202 [2010]; Matter ofRiemma v Cascone, 74 AD3d 1082, 1082-1083 [2010]; Matter of Hom v Zullo, 6 AD3d536, 536 [2004]).
Here, the Family Court's determination, in effect, granting that branch of the mother'spetition which was to modify an order of custody and visitation so as to award the fathervisitation with the subject child for only two hours every other weekend in a public place, withfurther visits [*2]upon the child's consent, was supported by asound and substantial basis in the record. Contrary to the father's contention, the record revealsthat he was given the opportunity to address the court at length during the hearing. Further, theFamily Court was fully familiar with the relevant facts after presiding over several appearancesof the parties, conducting an in camera interview with the subject child, and ascertaining theposition of the attorney for the child (seeRosenberg v Rosenberg, 60 AD3d 658, 658 [2009]; Matter of Potente v Wasilewski, 51 AD3d 675, 676 [2008]; Matter of Perez v Sepulveda, 51 AD3d673, 673-674 [2008]).
Moreover, contrary to the father's contention, the Family Court accorded the subject child'swishes the proper weight (see Matter of Boggio v Boggio, 96 AD3d at 835; Matter of Mohabir v Singh, 78 AD3d1056, 1057 [2010]; Matter of Merav Rodriguez, 73 AD3d 1069, 1070 [2010]; Matter of Jennifer WW., 274 AD2d778, 779 [2000]). In addition to the in camera interview with the then 13-year-old child, theFamily Court considered, inter alia, the other testimony and statements made at the hearing."While the authority of the Appellate Division in custody matters is as broad as that of thehearing court, deference should be accorded to the credibility determinations of the hearing court,which saw and heard the witnesesses, and the hearing court's custody determination should notbe set aside unless it lacks a sound and substantial basis in the record" (Matter of Kimberly A.H. v Perez, 99AD3d 903, 904 [2012]; see Matterof Nava v Kinsler, 85 AD3d 1186, 1186-1187 [2011]; Matter of Adams v Perryman, 68 AD3d860, 861 [2009]). We see no basis for disturbing the determination here.
To the extent that the father argues that the Family Court failed to determine his violationpetition against the mother, the status of that petition cannot be discerned from the record.Balkin, J.P., Roman, Sgroi and Cohen, JJ., concur.