        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1351
CAF 12-01077
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF JACQUELINE GOLDA,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LILLIAN RADTKE, RESPONDENT-RESPONDENT.
---------------------------------------
IN THE MATTER OF LILLIAN RADTKE,
PETITIONER-RESPONDENT,

                    V

JACQUELINE GOLDA, RESPONDENT-APPELLANT.


THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.

CLAIR A. MONTROY, III, ORCHARD PARK, FOR RESPONDENT-RESPONDENT AND
PETITIONER-RESPONDENT.

DAVID C. SCHOPP, ATTORNEY FOR THE CHILDREN, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL).


     Appeal from an order of the Family Court, Erie County (Margaret
O. Szczur, J.), entered May 18, 2012. The order, among other things,
adjudged that petitioner-respondent, Jacqueline Golda, is to have
three visits per year with the subject children.

     It is hereby ORDERED that said appeal is unanimously dismissed
insofar as it concerns the oldest child of petitioner-respondent and
the order is affirmed without costs.

     Memorandum: Petitioner-respondent mother (petitioner) commenced
this proceeding seeking to modify visitation with respect to her four
biological children. Respondent-petitioner (respondent), petitioner’s
sister, has custody of the children, and she in turn sought to reduce
petitioner’s visitation. Following a hearing and an in camera
interview with the children, Family Court granted the relief sought by
respondent and reduced petitioner’s visitation. Initially, we note
that any issues concerning visitation with the oldest child are moot
because she is now 18 years old (see Matter of Woodruff v Adside, 26
AD3d 866, 866). There is no dispute that there was a sufficient
change in circumstances since the prior order, and thus the issue
before us is whether the court properly determined that the best
                                 -2-                          1351
                                                         CAF 12-01077

interests of the children would be served by a change in visitation
(see Matter of Robert AA. v Colleen BB., 101 AD3d 1396, 1397, lv
denied 20 NY3d 860). “ ‘[T]he propriety of visitation is generally
left to the sound discretion of Family Court[,] whose findings are
accorded deference by this Court and will remain undisturbed unless
lacking a sound basis in the record’ ” (id.). Here, we conclude that
the court’s determination has ample support in the record.
Respondent, who supervised petitioner’s visits with the children,
testified that petitioner did not regularly avail herself of the
opportunity to visit the children despite an order allowing her
monthly visitation. Respondent further testified that, when
petitioner did visit with the children, the visitation was a negative
experience for the children. Finally, contrary to petitioner’s
contention, the court “gave proper weight to the children’s wishes
which, although not controlling, must be considered, particularly
where, as here, the children are of sufficient age to articulate their
needs and preferences to the court” (Matter of Lozada v Lozada, 270
AD2d 422, 422).




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
