Opinion
06-02-2016
In the Matter of Rachel A. PREFARIO, Appellant, v. Christopher GLADHILL, Respondent.
Samuel D. Castellino, Big Flats, for appellant. John M. Scanlon, Binghamton, attorney for the child.
Samuel D. Castellino, Big Flats, for appellant.
John M. Scanlon, Binghamton, attorney for the child.
Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and MULVEY, JJ.
DEVINE, J. Appeal from an order of the Family Court of Broome County (Pines, J.), entered March 26, 2015, which dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to find respondent in willful violation of a prior order of visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a son (born in 1999). As set forth in a 2011 decision of this Court, the father has sole legal and physical custody of the child and the mother is entitled to visitation on alternate Wednesday evenings and alternate weekends (Matter of Prefario v. Gladhill, 90 A.D.3d 1351, 1354–1355, 935 N.Y.S.2d 671 [2011] ). The mother commenced the instant violation proceeding in July 2014, alleging that the father had willfully deprived her of visitation with the child to which she was entitled. Family Court conducted a hearing at which the child testified, and thereafter concluded that the father did not willfully violate the prior order because the lack of visitation stemmed solely from the child's actions. The mother now appeals.
As the proponent of the violation petition, the mother was obliged to establish that there was a lawful court order in effect with a clear and unequivocal mandate, that the father had actual knowledge of the conditions of that order, and that his “actions or failure to act ‘defeated, impaired, impeded or prejudiced’ a right of the mother” (Matter of Constantine v. Hopkins, 101 A.D.3d 1190, 1191, 955 N.Y.S.2d 276 [2012], quoting Matter of Aurelia v. Aurelia, 56 A.D.3d 963, 964, 869 N.Y.S.2d 227 [2008] ; see Matter of Eller v. Eller, 134 A.D.3d 1319, 1320, 21 N.Y.S.3d 489 [2015] ). A further requirement is that the father's alleged violation be willful (see Matter of Eller v. Eller, 134 A.D.3d at 1320, 21 N.Y.S.3d 489; Matter of Constantine v. Hopkins, 101 A.D.3d at 1191, 955 N.Y.S.2d 276 ).
There is no dispute that the mother's efforts to exercise scheduled visitation from December 2013 through July 2014 were unsuccessful. The mother was in regular contact with the father to facilitate visitation during that period, and the father consistently put her off with assurances that he would get back to her after checking the child's calendar or that the child himself would be in touch to arrange visitation. The father agreed that scheduled visitation did not occur, but testified that he had no objection to visitation, that he always told the child about the mother's efforts to arrange it, and that it was the child's decision not to contact or visit with her. The child agreed that he was aware of the mother's efforts to arrange visitation and denied that the father had discouraged him from visiting with his mother, although the father did nothing to encourage it either, telling the child that it was up to him to decide whether he wanted to call his mother or engage in visitation. The child testified that the choice not to engage in that visitation was his alone, citing the fact that he was “always busy.”
Family Court rebuffed the expectation of the attorney for the child that a Lincoln hearing would be conducted, opining that the child was “old enough” to testify in open court. We take this opportunity to reiterate “that confidential Lincoln hearings are conducted in proceedings pursuant to Family Ct. Act article 6 because a child who is explaining the reasons for his or her preference should not be placed in the position of having his or her relationship with either parent further jeopardized by having to publicly relate his or her difficulties with them or be required to openly choose between them” (Matter of
There is a disturbing dearth “of evidence of any efforts by [the father] to facilitate compliance with the court-ordered visitation” (Matter of Aurelia v. Aurelia, 56 A.D.3d at 966, 869 N.Y.S.2d 227 ; cf. Matter of Omahen v. Omahen, 64 A.D.3d 975, 977, 882 N.Y.S.2d 558 [2009] ). We have, in fact, previously noted the father's tendency to be “somewhat passive” in those efforts, and in no way condone his continuing failures in that regard (Matter of Prefario v. Gladhill, 90 A.D.3d at 1353, 935 N.Y.S.2d 671 ). That being said, neither the custody order nor our 2011 modifications to it explicitly require the father to encourage the child to engage in visitation. Family Court credited the child's testimony that the cessation in visitation stemmed from his decisions and that his father played no role in it, and we accord due deference to that determination (see Matter of Barbara L. v. Robert M., 125 A.D.3d 1148, 1149, 4 N.Y.S.3d 353 [2015] ). Thus, we cannot say that Family Court abused its discretion in finding that the father did not willfully violate the 2011 order (see Matter of Constantine v. Hopkins, 101 A.D.3d at 1191–1192, 955 N.Y.S.2d 276 ; Matter of Shannon v. Brandow, 86 A.D.3d 752, 753, 926 N.Y.S.2d 768 [2011] ; Matter of Omahen v. Omahen, 64 A.D.3d at 977, 882 N.Y.S.2d 558 ).
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., EGAN JR., LYNCH and MULVEY, JJ., concur.
Battin v. Battin, 130 A.D.3d 1265, 1266, 12 N.Y.S.3d 672 [2015] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Gonzalez v. Hunter, 137 A.D.3d 1339, 1342–1343, 26 N.Y.S.3d 625 [2016] ). Those concerns are valid regardless of the child's age, and requiring the child here to publicly testify could easily have caused him to be less than candid regarding the reasons why court-ordered visitation has not occurred (see Matter of Battin v. Battin, 130 A.D.3d at 1266, 12 N.Y.S.3d 672 ; Matter of McGovern v. McGovern, 58 A.D.3d 911, 913 n. 2, 870 N.Y.S.2d 618 [2009] ).