Peralta v. Irrizary
(II)
Matter
of Matter of Peralta v Irrizary
2012
NY Slip Op 00524
Decided
on January 24, 2012
Appellate
Division, Second Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on January 24, 2012
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
PETER
B. SKELOS, J.P.
THOMAS
A. DICKERSON
LEONARD
B. AUSTIN
ROBERT
J. MILLER, JJ.
2011-06701
2011-06703
(Docket
Nos. V-1079-07, V-1080-07)
[*1]In
the Matter of Dorcas Peralta, appellant,
v
Thomas
Irrizary, et al., respondents.
Dorcas
Peralta, New Windsor, N.Y., appellant pro se.
Thomas Irrizary and
respondents pro se.
George
E. Reed, Jr.,
children.
DECISION
& ORDER
In
a proceeding pursuant to Family Court Act article 6 for grandparent visitation,
the maternal grandmother appeals from (1) an order of the Family Court, Orange
County (Kiedaisch, J.), dated June 7, 2011, which,
after a hearing, dismissed her petition to modify a prior order of supervised
visitation dated September 5, 2007, in effect, by substituting the New Windsor
YWCA for Nellie Peralta as the entity designated to supervise visitation, and
(2) an order of the same court, also dated June 7, 2011, which, after a
hearing, dismissed her separate petition, in effect, to enforce a decision and
order of this Court dated August 10, 2010, inter alia, awarding her monthly
supervised visitation.
ORDERED
that the orders dated June 7, 2011, are reversed, on the law, without costs or
disbursements, the petitions are reinstated, and the matter is remitted to the
Family Court,
This
proceeding involves grandparent visitation. An order of visitation dated
September 5, 2007, which was entered on the consent of the parties, awarded the
petitioner, the maternal grandmother (hereinafter the grandmother), supervised
visitation with her two granddaughters every other month. However, visitation
pursuant to that order occurred only once. The grandmother filed a modification
petition, inter alia, to increase visitation to once per month. In an order
dated May 15, 2009, the Family Court denied that petition, vacated the prior
order of visitation dated September 5, 2007, and dismissed the proceeding. The
grandmother appealed from the order dated May 15, 2009. In a decision and order
dated August 10, 2010, this Court modified the Family Court's order dated May
15, 2009. This court deleted the provisions thereof denying that branch of the
grandmother's petition which was to modify the order dated September 5, 2007,
to award her monthly visitation, vacating the order dated September 5, 2007,
and dismissing the proceeding, and substituting therefor
a provision awarding the grandmother monthly supervised visitation (see Matter
of Peralta v Irrizary, 76 AD3d 561). We concluded
that, contrary to the Family Court's determination, it was in the
grandchildren's best interests to have monthly supervised [*2]visitation
with the grandmother (id. at 562). We also noted that, "[b]y the parents'
testimony at the hearing that they did not intend to comply with the visitation
order going forward, the parents have unilaterally determined after one visit
that, despite the existing visitation arrangement, they would no longer allow
the grandmother to visit with her grandchildren" (id.).
According
to Nellie Peralta, the grandmother's sister, who had been appointed to
supervise the visitation, the parents continue to refuse to allow the
grandmother to visit with the grandchildren. The grandmother filed the two
petitions that are the subject of this proceeding, both dated September 14,
2010. In one petition, the grandmother sought to modify the prior order of
visitation, dated September 5, 2007, in effect, by substituting the New Windsor
YWCA for Nellie Peralta as the entity designated to supervise visitation, as
Nellie Peralta no longer wished to serve in this capacity and was unavailable
to supervise future visitation. In the other petition, the grandmother sought,
in effect, to enforce the decision and order of this Court dated August 10,
2010. Shortly after the commencement of a hearing, the Family Court granted the
parents' motion, made at the close of the petitioner's case, to dismiss the
petitions. In the orders appealed from, the Family Court dismissed both
petitions, determining that, as to each petition, the grandmother failed to
establish a prima facie case. The grandmother appeals and we reverse both
orders.
"A
visitation order may be modified upon a showing of sufficient change in
circumstances since the entry of the prior order such that modification is
warranted to further the child's best interests" (Matter of Balgley v Cohen, 73 AD3d 1038, 1038; see Matter of Figueroa
v Lewis, 81 AD3d 823, 823; Matter of Shockome v Shockome, 53 AD3d 618, 619). Contrary to the Family Court's
determination, the grandmother established, prima facie, that there had been a
sufficient change in circumstances such that modification of the prior order to
substitute the New Windsor YWCA for Nellie Peralta as the entity designated to
supervise visitation was warranted to further the grandchildren's best
interests. However, since the parents moved to dismiss the petition, and the
court granted their motion at the close of the petitioner's case, the parents
did not present their case in opposition to the modification petition.
Similarly,
based on the evidence before the Family Court, as well as the background and
history of the case with which the Family Court was fully familiar based on
prior proceedings (cf. Matter of Jenna C. [Omisa C.],
81 AD3d 941, 943; Matter of Weinschneider v Weinschneider, 73 AD3d 1194, 1195; Matter of Jeffers v
Hicks, 67 AD3d 800, 801; Matter of Attallah N., 65
AD3d 1047, 1048), the grandmother satisfied her prima facie burden with regard
to the petition, in effect, to enforce the decision and order of this Court
dated August 10, 2010 (see generally Matter of Alyssa L.D., 56 AD3d 1184, 1185;
Joye v Schechter, 118 Misc
2d 403, 410-411). The record establishes, prima facie, that the parents, in
willful violation of prior court orders, refuse to allow the grandmother to
visit with the children.
Accordingly,
we must remit the matter to the Family Court,
The
remaining contention of the attorney for the children need not be addressed at
this juncture.
SKELOS,
J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk
of the Court