In the Matter of Tracey Brown v. Erbstoesser

• Decision Date: 30 June 2011
• Citation: 928 N.Y.S.2d 92,2011 N.Y. Slip Op. 05594,85 A.D.3d 1497
• Parties: In the Matter of Tracey BROWN, as Attorney for the Children, Appellant,v.Gregory ERBSTOESSER et al., Respondents.(And Another Related Proceeding.).
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1497

928 N.Y.S.2d 92

2011 N.Y. Slip Op. 05594

In the Matter of Tracey BROWN, as Attorney for the Children, Appellant,

v.Gregory ERBSTOESSER et al., Respondents.(And Another Related Proceeding.).

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

June 30, 2011.

Tracey Brown, Clifton Park, attorney for the children, appellant pro se.Samuel D. Castellino, Elmira, for Gregory Erbstoesser, respondent.Hinman, Howard & Kattell, L.L.P., Binghamton (Katherine Fitzgerald of counsel), for Laurie S. Erbstoesser, respondent.Before PETERS, J.P., SPAIN, McCARTHY, GARRY and EGAN JR., JJ.SPAIN, J.

Appeal from an order of the Family Court of Broome County (Connerton, J.), entered November 10, 2009, which partially granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify prior orders of visitation.

Respondents are the divorced parents of two daughters, born in 1994 and 1997. In 2008, they consented to a Family Court order continuing the existing custody arrangement whereby the primary residence was with respondent Laurie S. Erbstoesser (hereinafter the mother) and respondent Gregory Erbstoesser (hereinafter the father) had parenting time every other weekend. Among other things, the consent order provided that the father attend counseling with the children every other week and parenting time with the father one night per week in alternating weeks when they are not engaged in counseling. It appears that at some point thereafter, the mother began to take a “hands off” attitude, refusing to compel or expect the children to visit or spend time with their father. She essentially left that decision to the children's discretion. As a result, the father has had very little time with the children since the 2008 consent order.

In February 2009, the father commenced a proceeding alleging that the mother violated the consent order by denying him parenting time with the children. Subsequently, petitioner, the attorney for the children, filed a separate petition seeking modification of the prior order of visitation so that any visitation would be at the sole discretion of the children; the mother appeared with counsel and, although she did not file a separate petition, she made an oral application and advocated throughout the fact-finding hearing for the same relief. Following the hearing wherein both children testified, ¹ Family Court found, among other things, that the mother had willfully violated the 2008 consent order by “wrongfully deferring too much authority to the [c]hildren on th[e] issue [of visitation] and fail[ing] to enforce the issue properly,” and doing “little, to nothing, to encourage the relationship between the [father] and the [c]hildren.” As its only sanction, the court directed that the mother pay the father's counsel fees and she has not appealed from any part of that determination and order. The court then partially granted the modification application by eliminating the children's weekday visitation with the father, and continuing all other aspects of the previous orders. Petitioner now appeals.

Asserting that Family Court did not go far enough in reducing visitation, petitioner argues that the court failed to properly consider the best interests of the children or to accord the appropriate weight to their wishes in modifying the prior order of visitation. “As with custody, an existing visitation order will be modified only if the applicant demonstrates a change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child” ( Matter of Taylor v. Fry, 63 A.D.3d 1217, 1218, 880 N.Y.S.2d 721 [2009] [citations omitted]; accord Matter of Braswell v. Braswell, 80 A.D.3d 827, 829, 914 N.Y.S.2d 749 [2011] ). A sufficient change may be shown where, as here, the desire of the children to visit the noncustodial parent has changed ( see Matter of Burch v. Willard, 57 A.D.3d 1272, 1273, 870 N.Y.S.2d 141 [2008]; Matter of Bowers v. Bowers, 266 A.D.2d 741, 742, 698 N.Y.S.2d 771 [1999] ). It is not disputed on appeal that a change in circumstances has been shown, and it is abundantly clear that counseling has not been effective.²

While the wishes of the children should be given consideration ( see Matter of Flood v. Flood, 63 A.D.3d 1197, 1198–1199, 880 N.Y.S.2d 748 [2009]; Matter of Miosky v. Miosky, 33 A.D.3d 1163, 1166, 823 N.Y.S.2d 269 [2006] ), “[v]isitation with a noncustodial parent is presumed to be in a child's best interests” ( Matter of Chambers v. Renaud, 72 A.D.3d 1433, 1434, 899 N.Y.S.2d 470 [2010]; see Matter of Flood v. Flood, 63 A.D.3d at 1198, 880 N.Y.S.2d 748; see also Matter of Andrews v. Coryea, 21 A.D.3d 1350, 1350, 801 N.Y.S.2d 183 [2005] ). To overcome this strong presumption—and effectively deny court-scheduled visitation to the father—it would have to be demonstrated that visitation would be detrimental to the children's welfare ( see Matter of Swett v. Balcom, 64 A.D.3d 934, 935–936, 884 N.Y.S.2d 785 [2009], lv. denied 13 N.Y.3d 710, 2009 WL 3427983 [2009]; Matter of Frierson v. Goldston, 9 A.D.3d 612, 614, 779 N.Y.S.2d 670 [2004] ).

Here, it has not been demonstrated that visitation has been detrimental to the children ( see Matter of Swett v. Balcom, 64 A.D.3d at 935, 884...