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State ex rel Barbara D. v. Francis D.

January 8, 2009

THE STATE OF NEW YORK, EX REL. BARBARA D., PETITIONER-APPELLANT,
v.
FRANCIS D., RESPONDENT-RESPONDENT.
FRANCIS D., PLAINTIFF-RESPONDENT,
v.
BARBARA D., DEFENDANT-APPELLANT.



Orders, Supreme Court, New York County (Laura VisitaciÓn-Lewis, J.), entered on or about July 15, 2008, which denied appellant former wife's motion for an order authorizing her unsupervised visitation with the parties' child, and dismissed her proceeding for a writ of habeas corpus, affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Nardelli, Sweeny, DeGrasse, Freedman, JJ.

109255/08, 305701/04 & 350827/99

The continuation of supervised visits was directed by order of Supreme Court (Judith J. Gische, J.), entered December 3, 2004. According to that order, the supervised visitation would continue "for an indeterminate duration and until there has been a sufficient change in circumstances warranting a modification." The court expressed concern that appellant was coaching the then-five-year-old child to make accusations of abuse against her father. Although at that time the supervisors did not report any actual coaching, Justice Gische noted that appellant's single-minded search to collect evidence to "get" the father was emotionally harmful to the child, and that her negative and hostile remarks confused and upset the child.

"One who seeks to modify an existing order of visitation is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant it" (Matter of Timson v Timson, 5 AD3d 691, 692 [2004]). With respect to the instant application, appellant has failed to make a prima facie showing of a sufficient effort on her part to break the pattern of hostility and destructive behavior that led the court to require supervised visitation in the first place. In fact, in an August 2007 letter to the court, appellant's therapist, Michael Leiman, CSW, stated: "She holds much anger - much stemming from her relationship with her ex husband & from present circumstances with the visits which she regards as unfair. This is reflected, probably, in hyper vigilance about [the child's] well being & over concerns of neglect by the father." This excerpt from a document submitted by appellant herself demonstrates that she has failed to gain sufficient insight into her underlying behavior.

She expresses remorse only for some vituperative and profane tirades that she directed at her former husband, within earshot of the child. In weighing this claim of regret, we note that the tirades are undeniable because they were tape-recorded by the father. Accordingly, the court correctly determined appellant had failed to demonstrate a change in circumstances that would warrant a change in the conditions of visitation.

Appellant's additional argument that she should not have to continue to bear the cost of visitation is unfounded. She never objected to entry of the access monitor order, which sets forth the relevant fees. Moreover, in a previous order, the court noted, contrary to appellant's current contention, that at an appearance in October 2007, the access supervisor informed the court he had repeatedly offered to arrange for appellant to receive free supervision services through the Society for the Prevention of Cruelty to Children. The court also noted that appellant did not at that time dispute the supervisor's representation and indeed agreed that he should make the necessary arrangements.

In light of that portion of the order directing the resumption of supervised visitation at the earliest date possible, the court correctly dismissed the proceeding for a writ of habeas corpus as moot.

We have considered appellant's remaining arguments and find them without merit.

All concur except Sweeny and Freedman, JJ. who dissent in part in a memorandum by Sweeny, J. as follows:

SWEENY, J. (dissenting in part)

I must part company with the majority on two issues.

I agree that a party seeking modification of an existing order of visitation is not automatically entitled to a hearing, but must make a sufficient evidentiary showing of changed circumstances to warrant one (Matter of Timson v Timson, 5 AD3d ...


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