Opinion
2012-11-13
In re Keisha GABRIEL S., Petitioner–Respondent, v. ALPHONSO S., Respondent–Appellant. In re Keisha Gabriel S., Plaintiff–Respondent, v. Alphonso S., Defendant–Appellant.
Lisa H. Blitman, New York, for appellant. White & Case LLP, New York (Michael DeSimone of counsel), for respondent.
Lisa H. Blitman, New York, for appellant. White & Case LLP, New York (Michael DeSimone of counsel), for respondent.
Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about November 12, 2009, which granted petitioner Keisha Gabriel S. a five-year order of protection against respondent Alphonso S. and order, Supreme Court, Bronx County (La Tia W. Martin, J.), entered on or about November 17, 2010, which denied respondent Alphonse S.'s application seeking modification of his access/visitation schedule with the parties' two children, unanimously affirmed, without costs.
Respondent's participation in the hearing via telephone did not deprive him of his due process rights ( see Matter of Paul Antoine Devantae R. [Paul R.], 78 A.D.3d 610, 611, 912 N.Y.S.2d 191 [1st Dept. 2010], lv. denied16 N.Y.3d 707, 920 N.Y.S.2d 781, 945 N.E.2d 1032 [2011] ), and there is no reason to disturb the hearing court's credibility determination ( see Everett C. v. Oneida P., 61 A.D.3d 489, 878 N.Y.S.2d 301 [1st Dept. 2009] ). The court's decision was appropriate given that respondent is incarcerated and did not request to be produced for the hearing. With regard to respondent's Supreme Court application to modify the visitation stipulation to include in-person visitation with the parties children at the correctional facility where he is incarcerated, the court properly found that respondent failed to present any evidence that there has been a change in circumstances to warrant such a modification, or that in-person visitation is in the best interests of the children ( see Matter of Santiago v. Halbal, 88 A.D.3d 616, 617, 932 N.Y.S.2d 32 [1st Dept. 2011] ).
We have considered respondent's remaining arguments and find them unavailing.