Calendar Date: September 3, 2013
Gordon, Tepper & Decoursey, LLP, Glenville (Jennifer P. Rutkey of counsel), for appellant.
Kimberly Craig, Ballston Spa, attorney for the child.
Before: Stein, J.P., McCarthy, Spain and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Family Court of Saratoga County (Jensen, J.), entered June 18, 2012, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorced parents of a daughter (born in 2001). Their May 2009 judgment of divorce, which incorporated but did not merge the parties' separation agreement, awarded the parties joint legal custody, with primary physical custody to the mother and specified parenting time to the father that included, among other things, alternate weekends and overnight on Wednesdays.
In February 2010, due to disagreements between the parties regarding vacation schedules, they each filed a modification petition in Family Court. As a result, in April 2010, Family Court (Abramson, J.) issued a consent order which, among other things, directed the parties to be flexible in exercising parenting time. Notwithstanding that order, the parties continued to have difficulties surrounding the father's parenting time and, in particular, the Wednesday overnights and the "right of first refusal" provision  contained in the separation agreement. Consequently, the mother filed another petition — which was subsequently amended — seeking to modify the father's parenting time. Specifically, the mother requested the court to, among other things, change the Wednesday visits from an overnight to a dinner visit and eliminate the right of first refusal. For his part, the father filed a violation petition alleging that the mother had refused to comply with the parenting schedule and the right of first refusal.
After a trial, Family Court (Jensen, J.) found that the mother had failed to establish a sufficient change in circumstances since the April 2010 order and dismissed her amended modification petition. In regard to the father's petition, the court found that the mother had willfully violated the terms of the judgment of divorce with respect to the father's parenting time and the right of first refusal and ordered, among other things, make-up parenting time to the father during the 2012 Thanksgiving and Christmas recesses and during the summer of 2012 . The court also fined the mother $1, 000 for her "egregious conduct" and issued a directive that the child not be permitted to have her cell phone while she was with the father. The mother now appeals.
The threshold determination in an application to modify an existing visitation order is whether there has been a sufficient change in circumstances reflecting a real need for change to insure the continued best interests of the child (see Nolan v Nolan, 104 A.D.3d 1102, 1103 ; Matter of Brown v Erbstoesser, 85 A.D.3d 1497, 1499 ; Matter of Bond v MacLeod, 83 A.D.3d 1304, 1305 ). Although a child's wishes can support the finding of a change in circumstances, they are but one factor and are not determinative (see Matter of Casarotti v Casarotti, 107 A.D.3d 1336, 1336 ; Matter of Brown v Erbstoesser, 85 A.D.3d at 1499; compare Matter of Bond v Bond, 93 A.D.3d 1100, 1101 ). Here, the mother's primary argument in support of her petition is that the child prefers to spend less time with the father. In that regard, the mother and the attorney for the child argue that Family Court erred by failing to conduct a Lincoln hearing with the child. While the decision whether to conduct such a hearing lies within the court's discretion (see Matter of Jessica B. v Robert B., 104 A.D.3d 1077, 1078 ; Matter of DeRuzzio v Ruggles, 88 A.D.3d 1091, 1092 ; Matter of Walker v Tallman, 256 A.D.2d 1021, 1022 , lv denied 93 N.Y.2d 804 ), it is often the preferable course (see Matter of Jessica B. v Robert B., 104 A.D.3d at 1078). In this case, the court originally indicated that it intended to speak with the child and later reiterated this position. While we can assume that the court ultimately decided that an interview with the child was not warranted or appropriate, the record is bereft of any articulation or explanation for such decision.
Additionally, we cannot ascertain from the record whether Family Court failed to consider the child's wishes with respect to spending time with her father or whether it considered the child's wishes, but rejected them as a basis for a modification. While Family Court stated in regard to the violation petition that the child's wishes did not excuse the mother from complying with the existing orders, it is not clear to what extent, if any, this conclusion played in the court's determination regarding the modification petition. To be sure, the wishes of this 12-year-old child were "at minimum, entitled to consideration" (Matter of Rivera v LaSalle, 84 A.D.3d 1436, 1439  [internal quotation marks and citation omitted]), and the record does not reflect whether such consideration was given to the child's wishes. As a result, and because we conclude that a Lincoln hearing is called for under the circumstances here (see Matter of Flood v Flood, 63 A.D.3d 1197, 1199 ), we must remit the modification petition to Family Court. 
We discern no error in Family Court's finding that the mother willfully violated the visitation provisions of the divorce judgment. "'To sustain a civil contempt finding based upon the violation of a court order, it must be established that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party. The violation must be established by clear and convincing evidence'" (Matter of Joseph YY. v Terri YY., 75 A.D.3d 863, 867 , quoting Matter of Aurelia v Aurelia, 56 A.D.3d 963, 964 ; accord Matter of Constantine v Hopkins, 101 A.D.3d 1190, 1191 ).
Here, it is undeniable that the mother prevented the father from exercising his parenting time with the child on numerous occasions (see Matter of Keefe v Adam, 85 A.D.3d 1225, 1227 ). For example, the mother admitted that she unilaterally decided that the child would stay with her for various holidays that fell within the father's parenting time, such as the 2010 Thanksgiving holiday and several days during the 2010 Christmas break. She also admitted that she violated the visitation order by picking up the child from school during the father's parenting time and preventing the father from exercising his Wednesday overnight visitation on a number of occasions. During the summer of 2011, the mother violated the right of first refusal provision by rejecting the father's offer to care for the child while she was at work and needed childcare . There is no question that the mother was aware of her obligations under the judgment of divorce and, despite that knowledge, interfered with the father's parenting time. Notwithstanding the mother's excuses and explanations, based upon the trial testimony and giving deference to Family Court's determination that the mother was not credible (see Matter of Holland v Holland, 80 A.D.3d 807, 808 ), we are satisfied that the mother's willful violation of the visitation order was established by clear and convincing evidence (see id. at 808; Matter of Joseph YY. v Terri YY., 75 A.D.3d at 867).
Although we generally defer to Family Court's determination of the appropriate sanction for a willful violation (see Matter of Sherman v Cook, 90 A.D.3d 1170, 1171 ), we find the $1, 000 fine imposed on the mother to be an improvident exercise of discretion under the circumstances here. Considering that the father clearly and unequivocally stated that he was requesting a monetary sanction only as an alternative to make-up parenting time, and that the court awarded the father substantial make-up time that sufficiently addressed the mother's conduct, we conclude that no fine should have been imposed. Inasmuch as the father's violation petition did not include a request that the child be prohibited from ...