| Matter of Zubizarreta v Hemminger |
| 2013 NY Slip Op 04617 [107 AD3d 909] |
| June 19, 2013 |
| Appellate Division, Second Department |
| In the Matter of Gulen Zubizarreta,Respondent, v John P. Hemminger, Appellant. |
—[*1] Wisselman, Harounian & Associates, P.C., Great Neck, N.Y. (Lisa Gregg ofcounsel), for respondent. Eric Pelmutter, Jamaica, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Queens County (Seiden, Ct. Atty. Ref.), datedDecember 13, 2011, which granted, without a hearing, the mother's petition to modify anorder of the District Court of Custer County, Oklahoma, dated August 28, 2008, so as toterminate his visitation with the subject child.
Ordered that the order dated December 13, 2011, is reversed, on the facts and in theexercise of discretion, without costs or disbursements, and the matter is remitted to theFamily Court, Queens County, for a hearing on the mother's petition, and thereafter anew determination of the mother's petition.
A court may modify a visitation order upon a showing of changed circumstances andthat modification is in the best interests of the child (see Matter of Rambali v Rambali, 102 AD3d 797, 799[2013]; Matter of Giannoulakisv Kounalis, 97 AD3d 748 [2012]; Matter of Balgley v Cohen, 73 AD3d 1038 [2010]; Matter of Sinnott-Turner vKolba, 60 AD3d 774 [2009]). "A noncustodial parent is entitled to meaningfulvisitation, and denial of that right must be based on substantial evidence that visitationwould be detrimental to the welfare of the child" (Matter of Sinnott-Turner vKolba, 60 AD3d at 775; see Matter of Rambali v Rambali, 102 AD3d at 799;Matter of Giannoulakis vKounalis, 97 AD3d 748 [2012]; Matter of Balgley v Cohen, 73 AD3d 1038 [2010]). A trialcourt's determination that the best interests of the child warrants termination of visitationwill not be set aside unless it lacks a sound and substantial basis in the record (seeMatter of Rambali v Rambali, 102 AD3d at 799; Matter of Giannoulakis v Kounalis, 97 AD3d 748 [2012];Matter of Mohabir v Singh,78 AD3d 1056, 1057 [2010]; Cashel v Cashel, 46 AD3d 501 [2007]). "Although achild's wishes are not determinative, his or her wishes, age, and maturity should be givenconsiderable weight" (Matter of Sinnott-Turner v Kolba, 60 AD3d at 775; see Cervera v Bressler, 90AD3d 803, 806 [2011]; see generally Matter of Lincoln v Lincoln, 24 NY2d270 [1969]). "Generally, visitation should be decided after a full evidentiary hearing todetermine the best interests of the children. However, a hearing is not necessary wherethe court possesses adequate [*2]relevant information tomake an informed determination of the children's best interests" (Matter of Myers v Anderson,100 AD3d 906, 906 [2012]; see Matter of James v Jeffries, 90 AD3d 929 [2011]; Matter of Riemma v Cascone,74 AD3d 1082 [2010]).
Here, the Family Court did not possess adequate relevant information to determinewhether the termination of the father's visitation with the child was in the child's bestinterest. For instance, although the attorney for the child indicated that the child, whowas then 13 years old, did not wish to visit the father, the court failed to conduct an incamera examination of the child to ascertain the child's views. Therefore, under thecircumstances of this case, the Family Court improvidently exercised its discretion ingranting the mother's petition to modify an order of the District Court of Custer County,Oklahoma, dated August 28, 2008, so as to terminate the father's visitation with thesubject child, without conducting a hearing (see Matter of New v Sharma, 91 AD3d 652 [2012]; Matter of James v Jeffries, 90AD3d 929 [2011]; Matter of Riemma v Cascone, 74 AD3d at 1083).Accordingly, we remit the matter to the Family Court, Queens County, for a hearing as towhether the termination of the father's visitation with the child is in the child's bestinterests and, thereafter, for a new determination of the mother's petition.
The father's arguments regarding a second order of the Family Court, QueensCounty, also dated December 13, 2011, which dismissed, without prejudice, his crosspetition seeking, inter alia, sole custody of the subject child, are not properly before thisCourt, as he did not appeal from that order. Balkin, J.P., Leventhal, Lott and Sgroi, JJ.,concur.