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In Giannoulakis v. Kounalis, 97 AD3d 748 (2nd Dept. 2012), the Second Department upheld the decision of the Family Court denying the father modification of the visitation provision of a prior order that denied him visitation.
Summary of this case from William I. v. Kathleen K.Opinion
2012-07-18
In the Matter of Nektarios GIANNOULAKIS, appellant, v. Christina KOUNALIS, respondent.
Anthony Augustus, Jamaica, N.Y., for appellant. Richard A. Piccola, Flushing, N.Y., attorney for the children.
Anthony Augustus, Jamaica, N.Y., for appellant. Richard A. Piccola, Flushing, N.Y., attorney for the children.
DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.
In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from (1) an order of the Family Court, Queens County (Negron, Ct.Atty.Ref.), dated July 12, 2011, which, after a hearing, in effect, denied his petition, in effect, to modify a the visitation provision of a prior order of the same court dated January 13, 2005, denying him visitation, and (2) an order of the same court, also dated July 12, 2011, which dismissed the proceeding.
ORDERED that the orders are affirmed, without costs or disbursements.
“A court may modify an order awarding custody and visitation upon a showing that there has been a subsequent change of circumstances and that modification is in the best interests of the child” (Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 775, 875 N.Y.S.2d 512;see Matter of Abranko v. Vargas, 26 A.D.3d 490, 491, 810 N.Y.S.2d 509). A noncustodial parent is entitled to meaningful visitation, and denial of that right must be based on substantial evidence that visitation would be detrimental to the welfare of the child ( see Cervera v. Bressler, 90 A.D.3d 803, 806, 934 N.Y.S.2d 500;Matter of Sinnott–Turner v. Kolba, 60 A.D.3d at 775, 875 N.Y.S.2d 512;Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313). “However, the determination of visitation is within the sound discretion of the trial court based upon the best interests of the child, and its determination will not be set aside unless it lacks a sound and substantial basis in the record” (Matter of Sinnott–Turner v. Kolba, 60 A.D.3d at 775, 875 N.Y.S.2d 512;see Cashel v. Cashel, 46 A.D.3d 501, 501, 845 N.Y.S.2d 920).
Here, the Family Court properly determined that the father failed to establish that a change in circumstances warrantedmodification of the visitation provision of a prior order denying him visitation ( see Matter of Sinnott–Turner v. Kolba, 60 A.D.3d at 775, 776, 875 N.Y.S.2d 512;Matter of Abranko v. Vargas, 26 A.D.3d at 491, 810 N.Y.S.2d 509). The father had a history of abusive behavior, and a forensic evaluator, who had an opportunity to interview the parties, concluded, among other things, that the father had failed to take responsibility for his actions or rectify his behavior. Considering the evaluator's recommendation that no visitation be awarded, the father's offensive demeanor during the hearing, and the fact that the father was arrested for domestic violence while the proceeding was pending, the Family Court's determination that therapeutic visitation was not in the best interests of the children should not be disturbed ( cf. Matter of Sinnott–Turner v. Kolba, 60 A.D.3d at 775–776, 875 N.Y.S.2d 512;Matter of Thompson v. Yu–Thompson, 41 A.D.3d at 488, 837 N.Y.S.2d 313).
Contrary to the father's contention, the Family Court providently exercised its discretion in declining to conduct in camera interviews with the children ( see Bibas v. Bibas, 58 A.D.3d 586, 588, 871 N.Y.S.2d 648;Matter of Desroches v. Desroches, 54 A.D.3d 1035, 1036, 864 N.Y.S.2d 551;Matter of Perez v. Montanez, 31 A.D.3d 565, 566, 817 N.Y.S.2d 677;Matter of Picot v. Barrett, 8 A.D.3d 288, 289, 777 N.Y.S.2d 698).