June 14, 2013
IN THE MATTER OF VALENTINA RULINSKY, PETITIONER-RESPONDENT-RESPONDENT,
JERMAINE WEST, RESPONDENT-PETITIONER-APPELLANT.
Appeal from an order of the Family Court, Oneida County (Randal B. Caldwell, J.), entered October 7, 2011 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, granted the petition of petitioner-respondent seeking to modify a prior order of custody and visitation, and denied the petition of respondent-petitioner for an order of contempt based on the alleged failure of petitioner-respondent to comply with the prior order.
PAUL M. DEEP, UTICA, FOR RESPONDENT-PETITIONER-APPELLANT.
MONICA R. BARILE, ATTORNEY FOR THE CHILD, NEW HARTFORD.
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, respondent-petitioner father appeals from an order that, following a hearing, granted the petition of petitioner-respondent mother seeking to modify a prior order of custody and visitation (prior order) by terminating visitation with the father, who was incarcerated. The order, inter alia, also denied the father's petition for an order of contempt based on the alleged failure of the mother to comply with the prior order. The prior order required the mother to bring the parties' biological child, who was 10 years old at the time of the commencement of this proceeding, to visit the father at the Auburn Correctional Facility twice a year.
We reject the father's contention that the mother failed to establish the requisite change in circumstances warranting a review of the prior order. "An order of visitation cannot be modified unless there has been a sufficient change in circumstances since the entry of the prior order [that], if not addressed, would have an adverse effect on the child['s] best interests" (Matter of Anderson v Roncone, 81 A.D.3d 1268, 1268, lv denied 16 N.Y.3d 712 [internal quotation marks omitted]; see also Matter of Ragin v Dorsey [appeal No. 1], 101 A.D.3d 1758, 1758). "[W]hile not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances" (Matter of Dorsa v Dorsa, 90 A.D.3d 1046, 1047; see Matter of VanDusen v Riggs, 77 A.D.3d 1355, 1356; Matter of Burch v Willard, 57 A.D.3d 1272, 1273). Here, the evidence establishes that, since the entry of the prior order and as the child has matured, she has developed a strong desire not to visit the father. Additionally, Family Court credited the mother's testimony that the father was using visitation time to attempt to reconcile with the mother rather than to interact with their child. Thus, we conclude that there has been a sufficient change of circumstances to warrant " an inquiry into whether the best interests of the [child] warranted a change in custody' " (Matter of Dingeldey v Dingeldey, 93 A.D.3d 1325, 1326 ; see Matter of Bowers v Bowers, 266 A.D.2d 741, 742).
We further reject the father's contention that the record fails to support the court's determination that visitation with him was not in the child's best interests. We recognize that "[v]isitation with a noncustodial parent is presumed to be in a child's best interests even when the parent is incarcerated" (Matter of Chambers v Renaud, 72 A.D.3d 1433, 1434; see Matter of Flood v Flood, 63 A.D.3d 1197, 1198). In order to rebut the presumption, the party opposing visitation must establish by a preponderance of the evidence "that under all the circumstances visitation [with the incarcerated parent] would be harmful to the child's welfare" (Matter of Granger v Misercola, ___ N.Y.3d ___, ___ [Apr. 30, 2013]). Here, the court did not make a determination with respect to whether the presumption in favor of visitation with the father had been rebutted. Nevertheless, we conclude that the record is adequate to enable us to determine that the mother established by a preponderance of the evidence that, under all the circumstances, "visitation would be harmful to the child's welfare" (id. at ___; see generally Matter of Vincent A.B. v Karen T., 30 A.D.3d 1100, 1101, lv denied 7 N.Y.3d 711).
With respect to the analysis of the best interests of the child in the absence of any presumption, we note that visitation "need not always include contact visitation at the prison" (Matter of Ruple v Harkenreader, 99 A.D.3d 1085, 1087; see Matter of Cole v Comfort, 63 A.D.3d 1234, 1235, lv denied 13 N.Y.3d 706; Matter of Conklin v Hernandez, 41 A.D.3d 908, 910). Moreover, "a court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record, " i.e., is not "supported by a sound and substantial basis in the record" (Matter of Krug v Krug, 55 A.D.3d 1373, 1374). While the fact that the father " is incarcerated will not, by itself, render visitation [with him] inappropriate' " (Matter of Thomas v Thomas, 277 A.D.2d 935, 935), that fact, when considered in conjunction with the evidence establishing the father's lack of prior contact with the child, the father's failure to interact with the child during visitation and the child's express desire not to visit with the father, provides a sufficient basis for the court's determination that terminating visitation with the father was in the child's best interests (see Matter of Bougor v Murray, 283 A.D.2d 695, 695-696; Bowers, 266 A.D.2d at 742). We therefore find no basis to disturb the court's determination, which was made after a Lincoln hearing and a full evidentiary hearing at which the father was present and testified (cf. Thomas, 277 A.D.2d at 935).
The father failed to preserve for our review his contention that the court should have dismissed the modification petition due to the mother's alleged lack of compliance with his discovery demand inasmuch as a "request for the imposition of a penalty pursuant to CPLR 3126 is improperly made for the first time on appeal" (Rivera v City of New York, 90 A.D.3d 735, 736). We further reject the father's contention that the court erred in dismissing his petition seeking an order of contempt for the mother's alleged failure to comply with the prior order. Where a party "seeks an adjudication of civil contempt based upon a violation of a court order, he or she must establish a willful and deliberate violation of a lawful court order expressing a clear and unequivocal mandate" (Collins v Telcoa Intl. Corp., 86 A.D.3d 549, 549; see Matter of Hicks v Russi, 254 A.D.2d 801, 801), and that, "as a result of the violation, a right or remedy of a party to the litigation was prejudiced" (Matter of Hughes v Kameneva, 96 A.D.3d 845, 846; see Judiciary Law § 753; McCain v Dinkins, 84 N.Y.2d 216, 226). Here, the mother's act of filing the modification petition was a proactive measure in the best interests of the child and is not the type of willful and deliberate violation punishable by contempt.