Peralta v. Irrizary
Matter
of Peralta v Irrizary
2010
NY Slip Op 06374
Decided
on August 10, 2010
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 August 10, 2010
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
PETER
B. SKELOS, J.P.
FRED
T. SANTUCCI
THOMAS
A. DICKERSON
JOHN
M. LEVENTHAL, JJ.
2009-05442
(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.
Levinson,
Reineke & Ornstein, P.C.,
E. Kimple of counsel), for
respondents.
George
E. Reed, Jr.,
DECISION
& ORDER
In
a proceeding, inter alia, pursuant to Family Court Act article 6 for
grandparent visitation, the maternal grandmother appeals, as limited by her
brief, from so much of an order of the Family Court, Orange County (Kiedaisch, J.), dated May 15, 2009, as, after a hearing,
denied her petition to modify a prior order of visitation of the same court,
entered on consent of the parties on September 6, 2007, vacated that order, and
dismissed the proceeding.
ORDERED
that the order dated May 15, 2009, is modified, on the law and the facts, by
deleting the provisions thereof denying that branch of the maternal
grandmother's petition which was for an order modifying the order entered
September 6, 2007, so as to award her monthly visitation, vacating the order
entered September 6, 2007, and dismissing the proceeding, and substituting therefor a provision granting the maternal grandmother's
petition to the extent of modifying the order entered September 6, 2007, so as
to award her monthly supervised visitation; as so modified, the order is
affirmed insofar as appealed from, without costs or disbursements.
A
prior order of visitation was entered on consent of the parties, awarding the
maternal grandmother supervised visitation with her two granddaughters every
other month. However, it is undisputed that visitation pursuant to this order
occurred on only one occasion. The maternal grandmother filed the instant
petition, seeking to modify the prior order of visitation so as to increase
visitation to once per month, and for additional visits to make up for those
visits that she was deprived of in abrogation of the prior order of visitation.
"In
order to modify an existing custody or visitation arrangement, there must be a
showing that there has been a change in circumstances such that modification is
required to protect the best interests of the child" (Matter of Arduino v Ayuso, 70 AD3d 682,
682; see Matter of Quinones v Ibarrondo, 67 AD3d 686,
686). "The best interests of the child are determined by an examination of
the totality of the circumstances" (Matter of Arduino
v Ayuso, 70 AD3d at 682; see Eschbach
v Eschbach, 56 NY2d 167, 172). [*2]
Here,
the grandmother established that there has been such a change of circumstances.
By 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 (cf.
Goldstein v Goldstein, 68 AD3d 717, 720; Matter of Le Blanc v Morrison, 288
AD2d 768, 770; Matter of Markey v Bederian, 274 AD2d
816, 817). Contrary to the Family Court's determination, we find that it is in
the grandchildren's best interests to have once monthly supervised visitation
with the grandmother (cf. Matter of Wilson v McGlinchey,
2 NY3d 375).
The
appellant's remaining contention is without merit.
SKELOS,
J.P., SANTUCCI, DICKERSON and LEVENTHAL, JJ., concur.
ENTER:
James
Edward Pelzer
Clerk
of the Court