Opinion
2013-11-8
In the Matter of Norman E. GREEN, Petitioner–Respondent, v. Jacqueline BONTZOLAKES, Respondent–Appellant.
Mary Anne Connell, Esq., Attorney for the Child, Appellant. Mary Anne Connell, Attorney for the Child, Buffalo, Appellant pro se.
Mary Anne Connell, Esq., Attorney for the Child, Appellant. Mary Anne Connell, Attorney for the Child, Buffalo, Appellant pro se.
Charles J. Greenberg, Amherst, for Respondent–Appellant.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
Respondent mother and the Attorney for the Child (appellants) appeal from an order in a proceeding pursuant to Family Court Act article 6 that modified an existing custody and visitation order by requiring that the mother's access to the subject child be supervised. In an October 7, 2009 order (2009 order), Family Court modified a prior custody order by awarding sole custody of the subject child to petitioner father and granting liberal access to the mother. The 2009 order changed custody from the mother to the father after the court determined that there was a change in circumstances, i.e., the mother's repeated frustration of the father's access and her failure to follow court orders. We affirmed the 2009 order on appeal (Matter of Green v. Bontzolakes, 83 A.D.3d 1401, 1402, 919 N.Y.S.2d 451,lv. denied17 N.Y.3d 703, 2011 WL 2473059). The instant order limited the mother's access to supervised visitation based largely upon the court's finding that the mother, without notifying the father and in violation of the 2009 order, absconded with the child, leaving the country for a period of 39 days.
We reject appellants' contentions that the court erred in determining that there was a change in circumstances and in imposing the condition that the mother's access to the child be supervised by the Catholic Charities Therapeutic Supervised Visitation Program. The court's determination was “ ‘based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, [and] is entitled to great weight,’ ” and we conclude that it is supported by a sound and substantial basis in the record ( Matter of Harder v. Phetteplace, 93 A.D.3d 1199, 1200, 940 N.Y.S.2d 414,lv. denied19 N.Y.3d 808, 2012 WL 2428565). The mother's violation of the 2009 order and her pattern of continued violation of court orders constitute a sufficient change in circumstances, particularly in light of her prolonged and intentional interference with the father's custodial rights and failure to communicate with him ( see Matter of Zwack v. Kosier, 61 A.D.3d 1020, 1021, 876 N.Y.S.2d 717,lv. denied13 N.Y.3d 702, 2009 WL 2622099;see also Matter of Owens v. Garner, 63 A.D.3d 1585, 1586, 881 N.Y.S.2d 251;Matter of Tyrone W. v. Dawn M.P., 27 A.D.3d 1147, 1148, 811 N.Y.S.2d 255,lv. denied7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243). Likewise, the court's determination that unsupervised visitation would be detrimental to the child has a sound and substantial basis in the record ( see Matter of Binong Xu v. Sullivan, 91 A.D.3d 771, 771–772, 936 N.Y.S.2d 569;see also Matter of Lane v. Lane, 68 A.D.3d 995, 996–997, 892 N.Y.S.2d 130). The mother put the child at risk of emotional and intellectual harm by absconding with her, causing her to miss over a month of school, and failing to appreciate the importance of the child's relationship with her father ( see Lane, 68 A.D.3d at 997, 892 N.Y.S.2d 130;Matter of Spurck v. Spurck, 254 A.D.2d 546, 547–548, 678 N.Y.S.2d 796;Chirumbolo v. Chirumbolo, 75 A.D.2d 992, 993, 429 N.Y.S.2d 112).
We agree with appellants, however, that the court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” (Matter of Bonthu v. Bonthu, 67 A.D.3d 906, 907, 889 N.Y.S.2d 97,lv. dismissed14 N.Y.3d 852, 901 N.Y.S.2d 134, 927 N.E.2d 554;see Wills v. Wills, 283 A.D.2d 1023, 1024, 723 N.Y.S.2d 920). By ordering only that visitation “shall take place through the Catholic Charities Therapeutic Supervised Visitation program,” the court improperly delegated its authority to the supervising agency ( see Matter of St. Pierre v. Burrows, 14 A.D.3d 889, 892, 788 N.Y.S.2d 494;see also Matter of Mackenzie V. v. Patrice V., 74 A.D.3d 1406, 1407–1408, 903 N.Y.S.2d 188). We note in addition that the court erred in merely indicating that “access should include the child's siblings, if that can be accommodated by the program.” If the court determined that sibling visitation is indeed in the best interests of the child, the court should specify in its order that the agency or organization designated to supervise visitation must be able to accommodate sibling visits. We therefore modify the order accordingly, and we remit the matter to Family Court to determine the access schedule and whether sibling visitation shall occur.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the second ordering paragraph to the extent that it delegates authority to the Catholic Charities Therapeutic Supervised Visitation Program to determine the duration and frequency of respondent's visitation with the child and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Erie County, for further proceedings.