SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1356
CAF 14-01002
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.
IN THE MATTER OF MARIA M. GUILLERMO,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
DOMINGO A. AGRAMONTE, RESPONDENT-RESPONDENT.
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STEPHANIE N. DAVIS, ESQ., ATTORNEY FOR THE
CHILDREN, APPELLANT.
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IN THE MATTER OF DOMINGO A. AGRAMONTE,
PETITIONER-RESPONDENT,
V
MARIA M. GUILLERMO, RESPONDENT-APPELLANT.
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STEPHANIE N. DAVIS, ESQ., ATTORNEY FOR THE
CHILDREN, APPELLANT.
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IN THE MATTER OF DOMINGO A. AGRAMONTE,
PETITIONER,
V
MARIA M. GUILLERMO, RESPONDENT.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER-APPELLANT AND RESPONDENT-
APPELLANT.
STEPHANIE N. DAVIS, ATTORNEY FOR THE CHILDREN, OSWEGO, APPELLANT PRO
SE.
PAUL M. DEEP, UTICA, FOR RESPONDENT-RESPONDENT AND PETITIONER-
RESPONDENT.
Appeals from an order of the Family Court, Oneida County (Julia
M. Brouillette, R.), entered May 8, 2014 in proceedings pursuant to
Family Court Act articles 6 and 8. The order, among other things,
awarded Domingo A. Agramonte sole legal custody of the subject
children.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the fourth, sixth,
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seventh, and eighth ordering paragraphs, and as modified the order is
affirmed without costs, and the matter is remitted to Family Court,
Oneida County, for further proceedings in accordance with the
following memorandum: Petitioner-respondent mother commenced this
proceeding seeking to modify a prior order of custody and visitation.
She appeals from an order that, following a hearing, granted
respondent-petitioner father’s cross petition by awarding him sole
custody of the parties’ children, with supervised visitation to the
mother. Contrary to the mother’s contention, Family Court properly
granted the cross petition. “A party seeking a change in an
established custody arrangement must show ‘a change in circumstances
which reflects a real need for change to ensure the best interest[s]
of the child’ ” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417).
Although the court did not specifically address whether the mother
established a change in circumstances, its determination that the
mother failed to establish that sole custody should be granted to her,
rather than to the father, “is the product of ‘careful weighing of
[the] appropriate factors’ . . . , and it has a sound and substantial
basis in the record” (Matter of McLeod v McLeod, 59 AD3d 1011, 1011;
see Matter of Gugino v Tsvasman, 118 AD3d 1341, 1342; Fox v Fox, 177
AD2d 209, 211). Likewise, although the court did not specifically
address whether the father established a change in circumstances, we
conclude that the father established the requisite change in
circumstances (see Matter of John P.R. v Tracy A.R., 13 AD3d 1125,
1125).
We reject the mother’s further contention that the court’s
evidentiary rulings with respect to the audio recordings made by a
police detective contemporaneously with his investigation of
allegations of a sexual assault against one of the children violated
her Sixth Amendment Confrontation Clause and Due Process rights under
the New York and United States Constitutions. Family Court matters
are civil in nature and the Confrontation Clause applies only to
criminal matters (see Matter of Q.-L. H., 27 AD3d 738, 739). The
mother failed to preserve for our review her contention that the court
erred in admitting hearsay evidence in the form of a detective’s audio
recording containing, inter alia, statements by the mother (see Matter
of Thomas M.F. v Lori A.A., 63 AD3d 1667, 1668, lv denied 13 NY3d 703)
and, in any event, that contention is without merit.
We agree with the mother, however, that the court erred in
admitting the audio recording of the confession of the perpetrator of
a sexual assault against one of the children. The relevant issue
before the court was not the guilt or innocence of the perpetrator.
Rather, it was the mother’s lack of cooperation with the investigation
into that crime, and her obstruction of law enforcement investigation
efforts, that was relevant. We conclude, however, that the error is
harmless inasmuch as it does not appear from the court’s decision that
the court relied on the recording (see Matter of Arianna M. [Brian
M.], 105 AD3d 1401, 1401-1402, lv denied 21 NY3d 862).
The mother correctly concedes that she failed to preserve her
contention that the court erred in admitting evidence concerning the
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CAF 14-01002
perpetrator’s youthful offender status because such disclosure
violated the confidentiality requirements of CPL 720.35. In any
event, we conclude that the mother lacks standing to challenge the
unauthorized disclosure (see generally Soucie v County of Monroe, 736
F Supp 33, 35).
We reject the mother’s further contention that the order,
including the requirement that visitation be supervised, is not
supported by a sound and substantial basis in the record. We conclude
that the court properly determined that there was a substantial change
in circumstances that warranted modification of the existing joint
custody order in the best interests of the children. It is well
settled that “a court’s determination regarding custody and visitation
issues, based upon a first-hand assessment of the credibility of the
witnesses after an evidentiary hearing, is entitled to great weight
and will not be set aside unless it lacks an evidentiary basis in the
record” (Matter of Dubuque v Bremiller, 79 AD3d 1743, 1744; see Matter
of Green v Bontzolakes, 83 AD3d 1401, 1402, lv denied 17 NY3d 703).
Here, the record establishes, inter alia, the mother’s obstruction of
law enforcement efforts to investigate a sexual assault against one of
the children, her attempts to sabotage the father’s relationship with
the children, and her placement of her own needs above those of the
children (see Matter of Howell v Lovell, 103 AD3d 1229, 1231-1232;
Matter of Krywanczyk v Krywanczyk, 236 AD2d 746, 747). We thus
conclude that the determination of the court has a sound and
substantial basis in the record and should not be disturbed (see
Matter of Ingersoll v Platt, 72 AD3d 1560, 1561).
We agree with the mother and the Attorney for the Children that
the provisions of the order limiting the mother’s visitation to
supervised telephone access one day per week for a maximum of 20
minutes, and to a minimum of three hours of supervised visitation per
month was unduly restrictive and thus not in the best interests of the
children (see Matter of Nathaniel T., 97 AD2d 973, 974). We therefore
modify the order by vacating the visitation schedule, and we remit the
matter to Family Court to determine a more appropriate supervised
visitation schedule (see generally Matter of Fox v Fox, 93 AD3d 1224,
1226). We further agree with the mother that the court improperly
delegated its authority to the father to determine the location of the
supervised visitation, the person or persons to supervise the mother’s
visitation, and whether any additional family members may attend
visitation with the mother (see generally Matter of Green v
Bontzolakes, 111 AD3d 1282, 1284). We therefore further modify the
order by vacating those provisions, and we remit the matter to Family
Court for the additional purpose of determining the location of
supervised visitation, the supervisor or supervisors of the
visitation, and whether additional family members, if any, may
accompany the mother to visitation.
Entered: March 25, 2016 Frances E. Cafarell
Clerk of the Court