Opinion
2012-10-17
In the Matter of JAMES M. (Anonymous), appellant, v. KEVIN M. (Anonymous), et al., respondents. (Proceeding No. 1) In the Matter of Jennifer M. (Anonymous), et al., appellants, v. Kevin M. (Anonymous), et al., respondents. (Proceeding No. 2) In the Matter of Jennifer M. (Anonymous), appellant, v. Kevin M. (Anonymous), et al., respondents. (Proceeding No. 3) In the Matter of Kevin M. (Anonymous), respondent, v. Jennifer M. (Anonymous), et al., appellants. (Proceeding Nos. 4, 5).
Michael G. Paul, New City, N.Y., for appellant James M. Carol Kahn, New York, N.Y., for appellant Jennifer M.
Michael G. Paul, New City, N.Y., for appellant James M. Carol Kahn, New York, N.Y., for appellant Jennifer M.
Thomas T. Keating, Dobbs Ferry, N.Y. (Joseph M. Angiolillo of counsel), for respondents.
Clara H. Lipinsky, Pine Island, N.Y., attorney for the child Austyn M.-M.
Paul I. Weinberger, Poughkeepsie, N.Y., attorney for the child Jaymes M.-M.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.
In related guardianship and visitation proceedings pursuant to Family Court Act article 6, the mother and the father separately appeal, as limited by their respective briefs, from so much of an order of the Family Court, Dutchess County (Forman, J.), dated March 28, 2011, as, after a hearing, upon granting their separate petitions to modify a visitation order of the same court dated November 4, 2009, by awarding them expanded unsupervised visitation with the child Austyn M.-M., in effect, denied their requests for overnight visitation.
ORDERED that the order dated March 28, 2011, is affirmed insofar as appealed from, with costs.
The mother and the father are parents of two children, Austyn and Jaymes. Since his birth, Austyn has been in the care and custody of the maternal grandfather, Kevin M., Austyn's legal guardian. Jaymes, after being removed from the care of the mother and father at birth and placed in foster care, was subsequently returned to the mother and father. By November 2009, the mother and father had full custody of Jaymes and, pursuant to an order of the Family Court dated November 4, 2009, the mother and father were awarded unsupervised visitation with Austyn once a month for up to eight hours.
The mother and father both filed petitions to modify the order of visitation dated November 4, 2009, to permit a “more traditional visitation schedule” and overnight visitation with Austyn. A hearing was held on the petitions before the Family Court, at which the mother, father, maternal grandfather, and maternal step-grandmother testified. At the close of all the testimony, the Family Court, inter alia, granted the mother's and father's modification petitions and awarded them an additional eight hours of unsupervised visitation with Austyn every other month. The Family Court, in effect, denied the mother's and father's requests for overnight visitation. The mother and the father appeal.
An existing visitation arrangement may be modified only “upon a showing ... that there has been a subsequent change of circumstances and modification is required” (Family Ct. Act § 467[b][ii]; see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526;Matter of Boggio v. Boggio, 96 A.D.3d 834, 945 N.Y.S.2d 764;Galanti v. Kraus, 85 A.D.3d 723, 724, 924 N.Y.S.2d 848). The paramount concern in any custody or visitation determination is the best interests of the child, under the totality of the circumstances ( see Matter of Wilson v. McGlinchey, 2 N.Y.3d at 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526;Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 96, 447 N.Y.S.2d 893, 432 N.E.2d 765;Matter of Boggio v. Boggio, 96 A.D.3d 834, 945 N.Y.S.2d 764;Galanti v. Kraus, 85 A.D.3d at 724, 924 N.Y.S.2d 848). Since custody and visitation determinations “necessarily depend[ ] to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded the court's findings. Therefore, its findings should not be set aside unless they lack a sound and substantial basis in the record” (Matter of Elliott v. Felder, 69 A.D.3d 623, 892 N.Y.S.2d 491).
Although, as a general rule, determinations regarding custody and related matters should be made after a full evidentiary hearing ( see e.g. Matter of Brooks v. Brooks, 255 A.D.2d 382, 383, 679 N.Y.S.2d 697), here, the mother and the father consented to the Family Court conducting only a “mini-trial,” thus waiving their right to a full evidentiary hearing ( see Matter of Aquino v. Antongiorgi, 92 A.D.3d 780, 781, 938 N.Y.S.2d 460;Matter of Goldman v. Goldman, 201 A.D.2d 860, 862, 608 N.Y.S.2d 533;cf. Matter of Richmond v. Perez, 38 A.D.3d 782, 783–784, 832 N.Y.S.2d 618). In any event, a full evidentiary hearing was not necessary in this case, since the Family Court possessed sufficient information to render an informed decision consistent with the best interests of the children based on its extensive history with the parties ( see Matter of Peluso v. Kasun, 78 A.D.3d 950, 950–951, 910 N.Y.S.2d 689;Matter of Hom v. Zullo, 6 A.D.3d 536, 775 N.Y.S.2d 66;see also Matter of Weinschneider v. Weinschneider, 73 A.D.3d 1194, 1195, 901 N.Y.S.2d 701).
Contrary to the contention of the mother and the father, the Family Court properly considered the totality of the circumstances, and its determination was supported by a sound and substantial basis in the record. Thus, the court's determination will not be disturbed ( see Matter of Davis v. Pignataro, 97 A.D.3d 677, 948 N.Y.S.2d 378;Matter of Solovay v. Solovay, 94 A.D.3d 898, 941 N.Y.S.2d 712;Matter of Jackson v. Coleman, 94 A.D.3d 762, 941 N.Y.S.2d 273).