Opinion
7724
11-27-2018
In re CHRISTOPHER H., Petitioner–Respondent, v. TAIESHA R., Respondent–Appellant.
Leslie S. Lowenstein, Woodmere, for appellant. Kenneth M. Tuccillo, Hastings on Hudson, for respondent. Janet Neustaetter, The Children's Law Center, Brooklyn (Laura Solecki of counsel), attorney for the children.
Leslie S. Lowenstein, Woodmere, for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
Janet Neustaetter, The Children's Law Center, Brooklyn (Laura Solecki of counsel), attorney for the children.
Renwick, J.P., Tom, Webber, Kahn, Moulton, JJ.
Order, Family Court, New York County (Jane Pearl, J.), entered on or about March 7, 2017, which granted the father's petition for modification of a May 8, 2014 visitation order to the extent of ordering that the mother have therapeutic parenting contact with subject children Mahogany H., Christopher H., Jr., and Skyearra H., unanimously affirmed, without costs. Modification of custody and visitation must be based on the best interests of the child ( Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765 [1982] ; Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). A court may modify a visitation or custody order based on a change of the parties' circumstances which makes modification necessary to ensure the best interests of the child ( Matter of Pena v. Lopez, 140 A.D.3d 967, 968, 34 N.Y.S.3d 115 [2d Dept. 2016] ). Terms and conditions of visitation are matters entrusted to the sound discretion of the trial court, and, as the determination of such issues largely depends on the court's assessment of the credibility of the witnesses and the character, temperament and sincerity of the parties, such determinations should not be reversed unless they lack a sound and substantial basis in the record ( id. ; Matter of Gelfarb v. Gelfarb, 133 A.D.3d 598, 18 N.Y.S.3d 548 [2d Dept. 2015] ; Matter of McLennan v. Gordon, 122 A.D.3d 742, 743, 996 N.Y.S.2d 339 [2d Dept. 2014] ).
There was a sound and substantial basis in the record for the modification. The mother requested and agreed to the therapeutic visitation she now appeals. The transcript of proceedings, moreover, belies her claim that the record is silent as to the three subject children, as it shows the proceedings addressed the subject children in detail.
The court appropriately determined the neglect cases constituted a change of circumstances warranting modification. The mother consented to the findings of neglect against her, and the evidence supported the court's findings of neglect against the mother's boyfriend, Mr. Williams, as to Christopher, Jr., and its findings of derivative neglect as to Mahogany H. and Skyearra H.
The modification is in the children's best interests, and thus was properly ordered, as therapeutic intervention is needed here. ( Matter of Lisa W. v. John M., 142 A.D.3d 879, 880, 38 N.Y.S.3d 148 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53563 [2017] ; State of N.Y. ex rel.Barbara D. v. Francis D., 58 A.D.3d 436, 437, 870 N.Y.S.2d 325 [1st Dept. 2009], appeal dismissed 12 N.Y.3d 872, 883 N.Y.S.2d 468, 911 N.E.2d 241 [2009] ),. Additionally, the mother consented to such therapy.