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relying on the in camera of the then 13 and 15 year old children, after determining the children were mature enough to express their wishes, the court was entitled to place great weight on their wishes, and declined to order visitation with the non-custodial parent
Summary of this case from D.P. v. N.T.Opinion
2015-06-24
In the Matter of Marc ROSENBLATT, respondent, v. Elizabeth ROSENBLATT, appellant. (Proceeding No. 1) In the Matter of Elizabeth Rosenblatt, appellant, v. Marc Rosenblatt, respondent. (Proceeding No. 2).
Mastro, J.P., Chambers, Roman and LaSalle, JJ., concur.
Arleen Lewis, Blauvelt, N.Y., for appellant. Cassandra Bilotta, New City, N.Y., attorney for the children.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Appeal from an order of the Family Court, Rockland County (William P. Warren, J.), entered December 23, 2013. The order, after a hearing, granted the father's petition to modify a prior order of visitation dated November 24, 2008, in effect, denied the mother's petition to enforce that order of visitation, and suspended all visitation and contact between the mother and the subject children.
ORDERED that the order entered December 23, 2013, is affirmed, without costs or disbursements.
In determining custody and visitation rights, the most important factor to be considered is the best interests of the child ( see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Nicholas v. Nicholas, 107 A.D.3d 899, 967 N.Y.S.2d 419). A court may modify an existing visitation order “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 Mack v. Kass, 115 A.D.3d 748, 748–749, 981 N.Y.S.2d 593; Matter of Manzella v. Milano, 82 A.D.3d 1242, 1242, 919 N.Y.S.2d 854; Matter of Arduino v. Ayuso, 70 A.D.3d 682, 682, 892 N.Y.S.2d 885).
“ ‘[A] noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child’ ” ( Matter of Mera v. Rodriguez, 73 A.D.3d 1069, 1069, 899 N.Y.S.2d 893, quoting Matter of Grisanti v. Grisanti, 4 A.D.3d 471, 473, 772 N.Y.S.2d 700; see Matter of Lyons v. Knox, 126 A.D.3d 798, 5 N.Y.S.3d 250; Matter of Giannoulakis v. Kounalis, 97 A.D.3d 748, 948 N.Y.S.2d 415; Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 775, 875 N.Y.S.2d 512). “ ‘The determination of visitation issues is entrusted to the sound discretion of the trial court, and should not be disturbed on appeal unless it lacks a substantial evidentiary basis in the record’ ” ( Matter of Mera v. Rodriguez, 73 A.D.3d at 1069, 899 N.Y.S.2d 893, quoting Matter of Thompson v. Yu–Thompson, 41 A.D.3d 487, 488, 837 N.Y.S.2d 313; see Matter of Sinnott–Turner v. Kolba, 60 A.D.3d at 775, 875 N.Y.S.2d 512).
Here, based on the evidence adduced at the hearing, the Family Court properly found that a change in circumstances in the relationship between the mother and the subject children warranted modification of the existing visitation schedule ( see Matter of Nicholas v. Nicholas, 107 A.D.3d 899, 900, 967 N.Y.S.2d 419). Moreover, considering the testimony elicited, the Family Court's determination that therapeutic supervised visitation with the mother would not be in the best interests of the subject children had a sound and substantial basis in the record, and should not be disturbed ( see Iacono v. Iacono, 117 A.D.3d 988, 989, 986 N.Y.S.2d 248; Matter of Robinson v. McNair, 90 A.D.3d 759, 761, 934 N.Y.S.2d 232; Matter of Mohabir v. Singh, 78 A.D.3d 1056, 1057, 910 N.Y.S.2d 917; Matter of Mera v. Rodriguez, 73 A.D.3d at 1070, 899 N.Y.S.2d 893). To the extent that the Family Court relied on the in camera interviews with the subject children, then 13 years old and 15 years old, respectively, it was entitled to place great weight on their wishes, since they were mature enough to express them ( see Matter of Mohabir v. Singh, 78 A.D.3d at 1057, 910 N.Y.S.2d 917; Matter of Mera v. Rodriguez, 73 A.D.3d at 1070, 899 N.Y.S.2d 893).
The mother's remaining contention, regarding an order subsequently issued, is not properly before this Court.