Opinion
2015-06-16
In re MOHAMED Z.G., Petitioner–Appellant, v. MAIREAD P.M., Respondent–Respondent.
Carol L. Kahn, New York, for appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Carol L. Kahn, New York, for appellant. Law Office of Cabelly & Calderon, Jamaica (Lewis S. Calderon of counsel), for respondent.
Karen P. Simmons, The Children's Law Center, Brooklyn (Susan M. Cordaro of counsel), attorney for the children.
, J.P., ANDRIAS, SAXE, DeGRASSE, KAPNICK, JJ.
Order, Family Court, Bronx County (Sue Levy, Referee), entered on or about June 13, 2014, which dismissed petitioner father's petition seeking visitation with the subject children, unanimously affirmed, without costs.
Three days before the father commenced this proceeding seeking visitation, the Referee had issued, upon the father's default, an order granting respondent mother sole custody of the children and an order of protection directing the father to stay away from the mother and the children for two years. Under these circumstances, the Referee, whose familiarity with the case enabled her to make an informed determination, properly dismissed the visitation petition after the father presented his case at the hearing, because the father failed to meet his burden of showing that there had been a change in circumstances warranting modification of the order of protection and that visitation would be in the children's best interests ( see Matter of Luis F. v. Dayhana D., 109 A.D.3d 731, 971 N.Y.S.2d 292 [1st Dept.2013]; Matter of Stitzel v. Brown, 1 A.D.3d 826, 827–828, 767 N.Y.S.2d 510 [3d Dept. 2003] ). Among other things, the father's testimony showed that he failed to recognize the effect his actions had on the children and had not addressed the issues that led to the order of protection being issued against him, and thus the requisite evidentiary basis existed for the Referee's finding that modifying the order to allow visitation would not be in the children's best interests ( see Matter of Craig S. v. Donna S., 101 A.D.3d 505, 954 N.Y.S.2d 876 [1st Dept.2012], lv. denied 20 N.Y.3d 862, 2013 WL 1235532 [2013]; Matter of Frank M. v. Donna W., 44 A.D.3d 495, 844 N.Y.S.2d 22 [1st Dept. 2007] ).
Contrary to the father's contention, the Referee was not required to order a forensic evaluation because she possessed sufficient information to make a comprehensive and independent review of the children's best interests after having issued the custody order and order of protection, following an inquest, just days earlier ( see Matter of Susan A. v. Ibrahim A., 96 A.D.3d 439, 945 N.Y.S.2d 688 [1st Dept.2012] ).
The father's contention that the Referee erred in relying upon the statements of the children's attorney concerning the views of the children's therapists is unpreserved ( see e.g. Matter of Matthew W. v. Meagan R., 68 A.D.3d 468, 469, 891 N.Y.S.2d 30 [1st Dept.2009] ), and we decline to review the issue in the interest of justice. Nevertheless, in a different context, the better practice would be for the court to hear directly from the therapists, either through testimony or a report.
Although the better practice would have been for the Referee to conduct an in camera interview with the children, who were 10 and 11 years old at the time of the hearing, under the circumstances before us it was appropriate for the attorney for the children to inform the court of the children's preference not to have contact with the father ( see Matter of Gloria DD. [Brenda DD.], 99 A.D.3d 1044, 1046–1047, 952 N.Y.S.2d 785 [3d Dept.2012] ).
In any event, any error in considering the statements of the attorney for the children would be harmless given the father's failure to meet his prima facie burden to establish that there had been a change of circumstances that warranted the modification of the order of protection and that visitation would be in the children's best interests.