                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      520999
________________________________

In the Matter of RACHEL A.
   PREFARIO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

CHRISTOPHER GLADHILL,
                    Respondent.
________________________________


Calendar Date:   April 21, 2016

Before:   McCarthy, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

                             __________


     Samuel D. Castellino, Big Flats, for appellant.

     John M. Scanlon, Binghamton, attorney for the child.

                             __________


Devine, J.

      Appeal from an order of the Family Court of Broome County
(Pines, J.), entered March 26, 2015, which dismissed petitioner's
application, in a proceeding pursuant to Family Ct Act article 6,
to find respondent in willful violation of a prior order of
visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the divorced parents of a son (born
in 1999). As set forth in a 2011 decision of this Court, the
father has sole legal and physical custody of the child and the
mother is entitled to visitation on alternate Wednesday evenings
and alternate weekends (Matter of Prefario v Gladhill, 90 AD3d
1351, 1354-1355 [2011]). The mother commenced the instant
violation proceeding in July 2014, alleging that the father had
willfully deprived her of visitation with the child to which she
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was entitled. Family Court conducted a hearing at which the
child testified, and thereafter concluded that the father did not
willfully violate the prior order because the lack of visitation
stemmed solely from the child's actions. The mother now appeals.

      As the proponent of the violation petition, the mother was
obliged to establish that there was a lawful court order in
effect with a clear and unequivocal mandate, that the father had
actual knowledge of the conditions of that order, and that his
"actions or failure to act 'defeated, impaired, impeded or
prejudiced' a right of the mother" (Matter of Constantine v
Hopkins, 101 AD3d 1190, 1191 [2012], quoting Matter of Aurelia v
Aurelia, 56 AD3d 963, 964 [2008]; see Matter of Eller v Eller,
134 AD3d 1319, 1320 [2015]). A further requirement is that the
father's alleged violation be willful (see Matter of Eller v
Eller, 134 AD3d at 1320; Matter of Constantine v Hopkins, 101
AD3d at 1191).

      There is no dispute that the mother's efforts to exercise
scheduled visitation from December 2013 through July 2014 were
unsuccessful. The mother was in regular contact with the father
to facilitate visitation during that period, and the father
consistently put her off with assurances that he would get back
to her after checking the child's calendar or that the child
himself would be in touch to arrange visitation. The father
agreed that scheduled visitation did not occur, but testified
that he had no objection to visitation, that he always told the
child about the mother's efforts to arrange it, and that it was
the child's decision not to contact or visit with her. The child
agreed that he was aware of the mother's efforts to arrange
visitation and denied that the father had discouraged him from
visiting with his mother, although the father did nothing to
encourage it either, telling the child that it was up to him to
decide whether he wanted to call his mother or engage in
visitation.1 The child testified that the choice not to engage


    1
        Family Court rebuffed the expectation of the attorney for
the child that a Lincoln hearing would be conducted, opining that
the child was "old enough" to testify in open court. We take
this opportunity to reiterate "that confidential Lincoln hearings
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in that visitation was his alone, citing the fact that he was
"always busy."

      There is a disturbing dearth "of evidence of any efforts by
[the father] to facilitate compliance with the court-ordered
visitation" (Matter of Aurelia v Aurelia, 56 AD3d at 966; cf.
Matter of Omahen v Omahen, 64 AD3d 975, 977 [2009]). We have, in
fact, previously noted the father's tendency to be "somewhat
passive" in those efforts, and in no way condone his continuing
failures in that regard (Matter of Prefario v Gladhill, 90 AD3d
at 1353). That being said, neither the custody order nor our
2011 modifications to it explicitly require the father to
encourage the child to engage in visitation. Family Court
credited the child's testimony that the cessation in visitation
stemmed from his decisions and that his father played no role in
it, and we accord due deference to that determination (see Matter
of Barbara L. v Robert M., 125 AD3d 1148, 1149 [2015]). Thus, we
cannot say that Family Court abused its discretion in finding
that the father did not willfully violate the 2011 order (see
Matter of Constantine v Hopkins, 101 AD3d at 1191-1192; Matter of
Shannon v Brandow, 86 AD3d 752, 753 [2011]; Matter of Omahen v
Omahen, 64 AD3d at 977).

     McCarthy, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.



are conducted in proceedings pursuant to Family Ct Act article 6
because a child who is explaining the reasons for his or her
preference should not be placed in the position of having his or
her relationship with either parent further jeopardized by having
to publicly relate his or her difficulties with them or be
required to openly choose between them" (Matter of Battin v
Battin, 130 AD3d 1265, 1266 [2015] [internal quotation marks,
brackets, ellipsis and citations omitted]; see Matter of Gonzalez
v Hunter, 137 AD3d 1339, 1342-1343 [2016]). Those concerns are
valid regardless of the child's age, and requiring the child here
to publicly testify could easily have caused him to be less than
candid regarding the reasons why court-ordered visitation has not
occurred (see Matter of Battin v Battin, 130 AD3d at 1266; Matter
of McGovern v McGovern, 58 AD3d 911, 913 n 2 [2009]).
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ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
