| Matter of Burrell v Burrell |
| 2012 NY Slip Op 08373 [101 AD3d 1193] |
| December 6, 2012 |
| Appellate Division, Third Department |
| In the Matter of Charles H. Burrell, Respondent, v Misty A. Burrell,Appellant. |
—[*1] Michelle E. Stone, Vestal, for respondent. Bridget A. O'Connor, Binghamton, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredDecember 20, 2011, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 6, to modify a prior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofone child (born in 1999). In October 2005, the parties stipulated to a custody arrangement bywhich they shared joint legal custody of the child, with the father having sole physical custodyand the mother having visitation on weekends, during one half of all holidays and vacationperiods and further visitation as the parties could agree. This agreement was incorporated into acustody order. In April 2011, the father commenced this modification proceeding seeking to limitthe mother's visitation to daytime visits only, with no overnight visitation. Following a hearing,Family Court granted the father's petition, ordering, among other things, that the mother shallhave supervised visitation each Sunday for two hours and further visitation as the parties agree.The mother appeals.
We affirm. "[A]n existing visitation order will be modified only if the applicant demonstratesa change in circumstances that reflects a genuine need for the modification so as to ensure thebest interests of the child" (Matter ofTaylor v Fry, 63 AD3d 1217, 1218 [2009]; [*2]accord Matter of Susan LL. v VictorLL., 88 AD3d 1116, 1117 [2011]). Moreover, "[t]he determination of whether visitationshould be supervised is a matter left to Family Court's sound discretion and it will not bedisturbed as long as there is a sound and substantial basis in the record to support it" (Matter of Taylor v Fry, 47 AD3d1130, 1131 [2008] [internal quotation marks and citation omitted]; accord Matter of Knight v Knight, 92AD3d 1090, 1092 [2012]).
It is undisputed that the child suffers from attention deficit hyperactivity disorder, bipolardisorder and oppositional defiant disorder, resulting in his frequent loss of self-control, becomingviolent and destructive. The father testified that the mother is unable to handle the child duringthese episodes and consistently cuts her visitation short by calling the father to come and pick upthe child. It is also undisputed that, in April 2011, the father responded to the mother's call topick up the child after the child began behaving violently and the father discovered that themother's current spouse had used excessive force in subduing the child, resulting in minorinjuries to the child. Based upon this evidence, we find that the father demonstrated a change incircumstances reflecting a need for modification of the prior order.
Having established a change in circumstances, Family Court conducted the requisite bestinterests analysis (see Matter of Flood vFlood, 63 AD3d 1197, 1198 [2009]). The record reflects that the mother admittedlycannot handle the child when he loses control, there is evidence in the record that the child wasinjured by the mother's spouse when the latter attempted to restrain the child, and the mother hasnot sought visitation in her home since that incident.[FN*]Further, despite having joint legal custody, the mother has not taken any steps to try to learn howto handle the child when he loses control, deciding instead to cut the visitation time short bycalling the father and relying on him to bring the child under control. Contrary to the mother'scontention, due to her inability or unwillingness to properly and safely care for the child, FamilyCourt's determination that two hours of weekly supervised visitation was in the child's bestinterests is supported by a sound and substantial basis in the record (see Matter of Sumner v Lyman, 70AD3d 1223, 1225 [2010], lv denied 14 NY3d 709 [2010]; Matter of Taylor vFry, 63 AD3d at 1218-1219). Finally, under the circumstances of this case, we cannot saythat Family Court abused its discretion in declining to conduct an in camera interview with thechild (see Matter of DeRuzzio vRuggles, 88 AD3d 1091, 1091-1092 [2011]).
Peters, P.J., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Family Court also ordered thatthe mother's spouse was to have no contact with the child.