Green v. Bontzolakes

• Decision Date: 08 November 2013
• Citation: 2013 N.Y. Slip Op. 07300,974 N.Y.S.2d 211,111 A.D.3d 1282
• Parties: In the Matter of Norman E. GREEN, Petitioner–Respondent, v. Jacqueline BONTZOLAKES, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 1282
974 N.Y.S.2d 211
2013 N.Y. Slip Op. 07300

In the Matter of Norman E. GREEN, Petitioner–Respondent,
v.
Jacqueline BONTZOLAKES, Respondent–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 8, 2013.

[974 N.Y.S.2d 212]

Mary Anne Connell, Esq., Attorney for the Child, Appellant.

Mary Anne Connell, Attorney for the Child, Buffalo, Appellant pro se.

Charles J. Greenberg, Amherst, for Respondent–Appellant.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.

MEMORANDUM:

Respondent mother and the Attorney for the Child (appellants) appeal from an order in a proceeding pursuant to Family Court Act article 6 that modified an existing custody and visitation order by requiring that the mother's access to the subject child be supervised. In an October 7, 2009 order (2009 order), Family Court modified a prior custody order by awarding sole custody of the subject child to petitioner father and granting liberal access to the mother. The 2009 order changed custody from the mother to the father after the court determined that there was a change in circumstances, i.e., the mother's repeated frustration of the father's access and her failure to follow court orders. We affirmed the 2009 order on appeal (Matter of Green v. Bontzolakes, 83 A.D.3d 1401, 1402, 919 N.Y.S.2d 451,lv. denied17 N.Y.3d 703, 2011 WL 2473059). The instant order limited the mother's access to supervised visitation based largely upon the court's finding that the mother, without notifying the father and in violation of the 2009 order, absconded with the child, leaving the country for a period of 39 days.

We reject appellants' contentions that the court erred in determining that there was a change in circumstances and in imposing the condition that the mother's access to the child be supervised by the Catholic Charities Therapeutic Supervised Visitation Program. The court's determination was “ ‘based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, [and] is entitled to great weight,’ ” and we conclude that it is supported by a sound and substantial basis in the record (

[974 N.Y.S.2d 213]

Matter of Harder v. Phetteplace, 93 A.D.3d 1199, 1200, 940 N.Y.S.2d 414,lv. denied19 N.Y.3d 808, 2012 WL 2428565). The mother's violation of the 2009 order and her pattern of continued violation of court orders constitute a sufficient change in circumstances, particularly in light of her prolonged and intentional...