Opinion
799 CAF 22-01265
12-22-2023
In the Matter of Anthony L. COLLICHIO, Petitioner-Appellant, v. Laura A. BISHOP, Respondent-Respondent.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR PETITIONER-APPELLANT. DAVID J. PAJAK, ALDEN, FOR RESPONDENT-RESPONDENT. CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR PETITIONER-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT-RESPONDENT.
CHARLES PLOVANICH, ROCHESTER, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CURRAN, MONTOUR, OGDEN, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the appeal from the order insofar as it directs that petitioner's visitation be supervised is unanimously dismissed and the case is held, the decision is reserved and the matter is remitted to Family Court, Orleans County, for further proceedings in accordance with the following memorandum: Petitioner father commenced this proceeding pursuant to Family Court Act article 6 seeking to modify a prior order of custody and visitation pursuant to which the father was granted three hours of supervised visitation per week. In his petition, the father sought expanded, unsupervised visitation. Prior to a hearing on the petition, however, the father advised Family Court that he was no longer seeking to have the visitation be unsupervised. The father now appeals from an order that, inter alia, denied the father's request for expanded visitation with the child. Preliminarily, we note that, to the extent that the father challenges that part of the order directing that his visitation be supervised, the appeal must be dismissed (see Matter of Braun v. Decicco , 117 A.D.3d 1453, 1453, 984 N.Y.S.2d 771 [4th Dept. 2014], lv dismissed in part & denied in part 24 N.Y.3d 927, 993 N.Y.S.2d 539, 17 N.E.3d 1135 [2014] ; see generally Matter of Geddes v. Montpetit , 15 A.D.3d 797, 797, 789 N.Y.S.2d 767 [3d Dept. 2005], lv dismissed 4 N.Y.3d 869, 797 N.Y.S.2d 814, 830 N.E.2d 1142 [2005] ; Matter of Cherilyn P. , 192 A.D.2d 1084, 1084, 596 N.Y.S.2d 233 [4th Dept. 1993], lv denied 82 N.Y.2d 652, 601 N.Y.S.2d 582, 619 N.E.2d 660 [1993] ).
Contrary to the contentions of respondent mother and the attorney for the child, the record does not establish that the father agreed to forgo his request for expanded visitation. However, the court did not make an express determination whether the father established a change in circumstances sufficient to warrant an inquiry into the child's best interests (see Matter of Hendershot v. Hendershot , 187 A.D.3d 1584, 1584-1585, 131 N.Y.S.3d 475 [4th Dept. 2020] ; Matter of DeVore v. O ’Harra-Gardner , 177 A.D.3d 1264, 1265, 112 N.Y.S.3d 380 [4th Dept. 2019] ). Under the circumstances presented, we decline to exercise our power "to independently review the record to ascertain whether the requisite change in circumstances existed" ( Matter of Austin v. Wright , 151 A.D.3d 1861, 1862, 57 N.Y.S.3d 822 [4th Dept. 2017] ). We therefore hold the case, reserve decision, and remit the matter to Family Court to make that determination and, if a sufficient change in circumstances has been established, for a new hearing on whether modification of the parties’ visitation arrangement is in the child's best interests (see id. ; see e.g. Matter of Joseph F. v. Patricia F. , 32 A.D.3d 938, 939-940, 821 N.Y.S.2d 625 [2d Dept. 2006] ).