| Matter of VanBuren v Assenza |
| 2013 NY Slip Op 06907 [110 AD3d 1284] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of Charles VanBuren, Appellant, v NicoleAssenza, Respondent. |
—[*1] Betty J. Potenza, Highland, attorney for the child.
Rose, J.P. Appeal from an order of the Family Court of Ulster County (Mizel, J.),entered January 18, 2012, which dismissed petitioner's application, in a proceedingpursuant to Family Ct article 6, for modification of a prior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a daughter (born in 2000). After the father abruptly left the state in 2003without explanation and without providing any means of contact, sole custody of thechild was awarded to the mother pursuant to an order entered on the father's default. Heresurfaced more than eight years later when he commenced this proceeding to modify theorder by granting him visitation. Following a fact-finding hearing, Family Court directedthe mother to provide the father with regular updates regarding the child, but concludedthat visitation was not presently in the child's best interest. We affirm.
" 'Visitation by a noncustodial parent is presumed to be in the child's best interest andshould be denied only in exceptional situations, such as where substantial evidencereveals that visitation would be detrimental to the welfare of the child' " (Matter of Marshall v Bradley,59 AD3d 870, 871 [2009], quoting Matter of Frierson v Goldston, 9 AD3d 612, 614 [2004];see Matter of Susan LL. vVictor LL., 88 AD3d 1116, 1119 [2011]). Here, the evidence established that, in2002, a one-year order of protection had been issued against the father based onstatements he made to the mother threatening to harm her and the child. After the orderexpired, the father had supervised visitations, but he abandoned them soon after theycommenced and [*2]moved away without telling themother or child that he was leaving or where he had gone. Although he returned to thearea in 2007, he did not seek visitation until he commenced this proceeding in 2011,claiming that he had various unspecified personal issues he first needed to resolve. Thefather never sent the child any letters, cards, pictures or gifts, claiming that he did notknow if the order of protection prevented him from doing so, and he offered noreasonable explanation for his complete absence from the child's life for over eight years.The record also reveals that the child has bonded with her stepfather, who has been in herlife since she was two years old, and that the child does not wish to have visitation. Thefather's newly found desire to have contact has caused her to feel anxious, cry andbecome upset, and she has been in therapy to deal with her anxiety over the courtproceedings. Under these circumstances, we find no basis to disturb Family Court'sdetermination (see Matter ofJohnson v Williams, 59 AD3d 445, 445 [2009]; Matter of Cattell vAhrem, 254 AD2d 356, 356 [1998]; Matter of Heyer v Heyer, 112 AD2d539, 540 [1985]).
Nor are we persuaded that Family Court improperly relied on either the mother'stestimony regarding her observations of the child's emotional reaction to the prospect ofvisitation or the strong position of the attorney for the child (see e.g. Matter of Thompson vYu-Thompson, 41 AD3d 487, 488 [2007]). Furthermore, given the child'semotional turmoil, and the fact that her wishes were known by the court, we find noabuse of discretion in the court's failure to hold a Lincoln hearing (see Matter of Burrell v Burrell,101 AD3d 1193, 1195 [2012]; Matter of DeRuzzio v Ruggles, 88 AD3d 1091, 1091-1092[2011]; Matter of Carolyn S. vTompkins County Dept. of Social Servs., 80 AD3d 1087, 1091 [2011]).
Lahtinen, Spain and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.