| Matter of Madden v Ruskiewicz |
| 2014 NY Slip Op 03515 [117 AD3d 827] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Benjamin Madden, Jr.,Appellant, v Jennifer Ruskiewicz, Respondent. (Proceeding Nos. 1 and 2.) In theMatter of Jennifer Ruskiewicz, Respondent, v Benjamin Madden, Jr., Appellant.(Proceeding No. 3.) |
Neal D. Futerfas, White Plains, N.Y., for appellant.
Paul N. Weber, Cornwall, N.Y., for respondent.
Gary E. Eisenberg, New City, N.Y., attorney for the children.
In two related child custody and visitation proceedings pursuant to Family Court Actarticle 6 and a related family offense proceeding pursuant to Family Court Act article 8,the father appeals, as limited by his brief, from so much of (1) an order of the FamilyCourt, Orange County (Kiedaisch, J.), dated April 26, 2013, as, after a hearing, deniedthose branches of his petition which were to modify an order of custody and visitation ofthe same court dated November 29, 2011, so as to grant him increased communicationwith the children, and to modify an order of protection of the same court datedNovember 15, 2011, and thereupon directed him to have no contact with the childrenunless the children initiate such contact and directed him to have no contact with themother regarding the children, (2) two orders of protection of the same court bothentered April 26, 2013, as directed him to have no contact with the children unless thechildren initiate such contact and directed him to have no contact with the motherregarding the children, and (3) a modified order of custody and visitation of the samecourt entered May 3, 2013, as incorporated the provisions of the orders of protectionentered April 26, 2013.
Ordered that the appeals from so much of the orders as related to the father'svisitation with the parties' child Samantha are dismissed as academic, without costs ordisbursements; and it is further,
Ordered that the order dated April 26, 2013, is affirmed insofar as reviewed, withoutcosts or disbursements; and it is further,
[*2] Ordered that the orders of protection entered April 26, 2013, are modified, on thefacts, by adding thereto decretal paragraphs finding that the following aggravatingcircumstances exist: "behaviors and occurrences which to the court constitute animmediate and ongoing danger to the mother or any member of the mother's family orhousehold"; as so modified, the orders of protection entered April 26, 2013, are affirmed,without costs or disbursements; and it is further,
Ordered that the modified order of custody and visitation entered May 3, 2013, isaffirmed insofar as reviewed, without costs or disbursements.
Since the parties' child Samantha is now over 18 years of age, she is not subject tothe visitation provisions of the orders appealed from (see Matter of Krasner v Krasner, 94 AD3d 763 [2012]; Matter of McGovern v Lynch,62 AD3d 712 [2009]; Matter of Sassower-Berlin v Berlin, 31 AD3d 771[2006]).
In adjudicating visitation, the most important factor is the best interests of thechildren (see Matter of Wilson v McGlinchey, 2 NY3d 375 [2004]; Matter of Shockome vShockome, 53 AD3d 618 [2008]). A visitation order may be modified upon ashowing of a sufficient change in circumstances since the entry of the prior order suchthat modification is warranted to further the children's best interests (see FamilyCt Act § 652; Matter of Luo v Yang, 103 AD3d 636 [2013]; Matter of Awan v Awan, 75AD3d 597 [2010]). Additionally, an order of protection may be modified, after ahearing, for "good cause shown" (Family Ct Act § 844).
Based on the evidence adduced at the hearing, the Family Court did not err indenying that branch of the father's petition which was for increased communication withthe children and in further restricting the father's communication with the children. Therecord establishes that the father was incarcerated pursuant to a conviction, upon his pleaof guilty, of criminal sexual act in the second degree, and that the charges related to actswith the minor friend of one of his daughters. Additionally, the Family Court previouslyfound that the father had sexually abused and neglected his daughters, and hadderivatively neglected his son (see Matter of Raymond M., 13 AD3d 377 [2004]). Further,during his testimony at the hearing on his petition, the father admitted that he sentinappropriate written communications to the children in violation of a prior order ofprotection. Under these circumstances, the Family Court providently exercised itsdiscretion in directing the father not to contact the children unless they initiate suchcontact and to not contact the mother regarding the children (see Matter of Krasner vKrasner, 94 AD3d 763 [2012]; Matter of David V. v Rosalind W., 62 AD3d 717 [2009];Matter of Mohabir v Singh,78 AD3d 1056 [2010]; Matter of Shockome v Shockome, 53 AD3d 618 [2008];see also Family Ct Act § 844; cf. Matter of Ice S., 30 AD3d 428 [2006]; Matter of Anaya v Hundley, 12AD3d 594 [2004]). Skelos, J.P., Sgroi, Cohen and LaSalle, JJ., concur.