Opinion
2013-12-27
In the Matter of Jacqueline GOLDA, Petitioner–Appellant, v. Lillian RADTKE, Respondent–Respondent. In the Matter of Lillian Radtke, Petitioner–Respondent, v. Jacqueline Golda, Respondent–Appellant.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Petitioner–Appellant and Respondent–Appellant. Clair A. Montroy, III, Orchard Park, for Respondent–Respondent and Petitioner–Respondent.
The Abbatoy Law Firm, PLLC, Rochester (David M. Abbatoy, Jr., of Counsel), for Petitioner–Appellant and Respondent–Appellant. Clair A. Montroy, III, Orchard Park, for Respondent–Respondent and Petitioner–Respondent.
David C. Schopp, Attorney for the Children, the Legal Aid Bureau of Buffalo, Inc., Buffalo (Charles D. Halvorsen of Counsel).
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Petitioner-respondent mother (petitioner) commenced this proceeding seeking to modify visitation with respect to her four biological children. Respondent-petitioner (respondent), petitioner's sister, has custody of the children, and she in turn sought to reduce petitioner's visitation. Following a hearing and an in camera interview with the children, Family Court granted the relief sought by respondentand reduced petitioner's visitation. Initially, we note that any issues concerning visitation with the oldest child are moot because she is now 18 years old ( see Matter of Woodruff v. Adside, 26 A.D.3d 866, 866, 809 N.Y.S.2d 754). There is no dispute that there was a sufficient change in circumstances since the prior order, and thus the issue before us is whether the court properly determined that the best interests of the children would be served by a change in visitation ( see Matter of Robert AA. v. Colleen BB., 101 A.D.3d 1396, 1397, 956 N.Y.S.2d 642, lv. denied20 N.Y.3d 860, 2013 WL 535800). “ ‘ [T]he propriety of visitation is generally left to the sound discretion of Family Court[,] whose findings are accorded deference by this Court and will remain undisturbed unless lacking a sound basis in the record’ ” ( id.). Here, we conclude that the court's determination has ample support in the record. Respondent, who supervised petitioner's visits with the children, testified that petitioner did not regularly avail herself of the opportunity to visit the children despite an order allowing her monthly visitation. Respondent further testified that, when petitioner did visit with the children, the visitation was a negative experience for the children. Finally, contrary to petitioner's contention, the court “gave proper weight to the children's wishes which, although not controlling, must be considered, particularly where, as here, the children are of sufficient age to articulate their needs and preferences to the court” ( Matter of Lozada v. Lozada, 270 A.D.2d 422, 422, 704 N.Y.S.2d 313).
It is hereby ORDERED that said appeal is unanimously dismissed insofar as it concerns the oldest child of petitioner-respondent and the order is affirmed without costs.