| Matter of Mary GG. v Alicia GG. |
| 2013 NY Slip Op 03893 [106 AD3d 1410] |
| May 30, 2013 |
| Appellate Division, Third Department |
| In the Matter of Mary GG., Respondent, v Alicia GG.,Respondent, andRalph HH., Appellant. (Proceeding No. 1.) In the Matter of Ralph HH.,Appellant, v Mary GG., Respondent. (Proceeding No.2.) |
—[*1] Daniel Gartenstein, Kingston, attorney for the child.
McCarthy, J. Appeals (1) from an order of the Family Court of Ulster County (Lalor,J.H.O.), entered May 16, 2012, which granted petitioner's application, in proceeding No.1 pursuant to Family Ct Act article 6, for custody of her grandchild, and (2) from anorder of said court (McGinty, J.), [*2]entered October 5,2012, which dismissed petitioner's application, in proceeding No. 2 pursuant to FamilyCt Act article 6, to modify a prior order of visitation.
Ralph HH. (hereinafter the father) and respondent Alicia GG. (hereinafter themother) are the parents of one son (born in 2009). Mary GG. (hereinafter thegrandmother), the child's maternal grandmother, commenced proceeding No. 1 seekingcustody of the child, alleging that the father was incarcerated and the mother was oftenintoxicated while caring for the child and allowed her dangerous boyfriend to be in thechild's presence. At the initial appearance, the mother consented to the grandmotherbeing awarded custody. The father appeared telephonically from prison and wasrepresented by counsel, who was present in court. Family Court (Lalor, J.H.O.) wasinformed that an order of protection issued by County Court in a criminal proceedingprohibited the father from having any contact with the mother or child until March 2018.The father stated that he was trying to get the order of protection modified to allow himaccess to his son, and that he did not know what was going on because he was in prison.Family Court indicated an intention to grant the grandmother's petition, but the attorneyfor the child stated that he could not consent because he had not yet met with the child.The court then set a return date, but dispensed with the mother's appearance because shehad already consented to the relief requested and dispensed with the father's appearancebecause he was in prison and subject to a permanent order of protection. On the returndate, the grandmother appeared, as did the attorney for the child, who consented to therelief requested. The court granted custody to the grandmother with visitation to themother. The father appeals from this order.
Three months after the order was entered, the father commenced proceeding No. 2seeking to modify that order by granting him visitation. Family Court (McGinty, J.)dismissed the petition without a hearing or appearance. The father appeals from thatorder as well.
Family Court (Lalor, J.H.O.) did not deprive the father of due process when itgranted the grandmother's petition. Contrary to the father's argument, he was notexcluded from participating in a hearing, as no hearing was held. Neither the father norhis counsel objected when the court dispensed with the father's appearance, nor did eitherof them request a hearing. Counsel correctly noted that the County Court order ofprotection forbade the father from having any contact with his son and that Family Courthad no jurisdiction to modify that order. The grandmother adequately allegedextraordinary circumstances, namely that neither parent was capable of caring for thechild, and these allegations were not contested; the mother acknowledged that she waspresently unable to care for the child and agreed to the relief requested, and the fatherwas in prison and subject to a stay-away order of protection. While a hearing is generallynecessary for a court to determine a custody petition, "the father did not request anevidentiary hearing, and none was required on these facts given that Family Court hadsufficient, uncontroverted information before it to independently rule on the petition andthe son's best interests . . . , and there were no disputed factual issues toresolve" (Matter of Balram vBalram, 53 AD3d 808, 810 [2008], lv denied 11 NY3d 708 [2008]; see Matter of Cole v Cole, 88AD3d 1104, 1104-1105 [2011]; Matter of Anthony MM. v Rena LL., 34 AD3d 1171, 1172[2006], lv denied 8 NY3d 805 [2007]).
Family Court (McGinty, J.) properly dismissed the father's visitation petition withouta hearing. Initially, the petition was facially invalid because it failed to allege a change incircumstances since the entry of the prior order (see Matter of Glazier v Brightly, 81 AD3d 1197, 1198[2011]; Matter of Fielding vFielding, 41 AD3d 929, 930 [2007]; Matter of Critzer v Mann, [*3]17 AD3d 735, 736 [2005]). Additionally, a hearing wasunnecessary because Family Court had uncontroverted information before it regardingthe child's best interests, namely that it could not grant the father visitation in light of theCounty Court order of protection requiring him to stay away from the child until 2018(see Matter of Secrist vBrown, 83 AD3d 1399, 1400 [2011], lv denied 17 NY3d 706 [2011];Matter of Balram v Balram, 53 AD3d at 810; Matter of Curtis N., 288AD2d 774, 776 [2001], lv denied 97 NY2d 610 [2002]). The father's remainingarguments are without merit.
Lahtinen, J.P., Garry and Egan Jr., JJ., concur. Ordered that the orders are affirmed,without costs.