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In re Luis F.

Supreme Court of New York, First Department

September 24, 2013

In re Luis F., Petitioner-Appellant,
v.
Dayhana D., Respondent-Respondent.

Leslie S. Lowenstein, Woodmere, for appellant.

Carol Kahn, New York, for respondent.

Karen P. Simmons, The Children's Law Center, Brooklyn (Susan M. Cordaro of counsel), attorney for the child.

Friedman, J.P., Freedman, Richter, Feinman, Gische, JJ.

Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about August 9, 2012, which, after a hearing, among other things, denied the father's petition for unsupervised visitation with his child, unanimously modified, on the law and the facts, to strike that portion of the order which, in effect, prohibits petitioner from seeking modification of the order until the end of 2013, and otherwise affirmed, without costs.

There is a sound and substantial evidentiary basis for the Family Court's determination that it is not in the subject child's best interest to award petitioner unsupervised visitation (Matter of Craig S. v Donna S., 101 A.D.3d 505 [1st Dept 2012], lv denied 20 N.Y.3d 862 [2013]). The evidence shows that petitioner had been convicted of assaulting the child's mother and was required to participate in a six-month domestic violence program.

We find, however, that the Family Court should not have expressly limited petitioner from seeking modification of the order until "the end of 2013" (see Matter of Smith v Smith, 92 A.D.3d 791, 792-793 [2d Dept 2012]). A custody or visitation order may be modified at any time upon establishing that there has been a subsequent change of circumstances and that modification is in the child's best interest (see Matter of Wilson v McGlinchey, 2 N.Y.3d 375, 380 [2004]).


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