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

1034
CAF 12-00853
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF NORMAN E. GREEN,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JACQUELINE BONTZOLAKES, RESPONDENT-APPELLANT.
------------------------------------------------
MARY ANNE CONNELL, ESQ., ATTORNEY FOR THE CHILD,
APPELLANT.


MARY ANNE CONNELL, ATTORNEY FOR THE CHILD, BUFFALO, APPELLANT PRO SE.

CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.


     Appeals from an order of the Family Court, Erie County (Rosalie
S. Bailey, J.), entered March 27, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, modified
an existing custody and visitation order by requiring that
respondent’s access to the subject child be supervised.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the second ordering
paragraph to the extent that it delegates authority to the Catholic
Charities Therapeutic Supervised Visitation Program to determine the
duration and frequency of respondent’s visitation with the child and
as modified the order is affirmed without costs, and the matter is
remitted to Family Court, Erie County, for further proceedings in
accordance with the following Memorandum: Respondent mother and the
Attorney for the Child (appellants) appeal from an order in a
proceeding pursuant to Family Court Act article 6 that modified an
existing custody and visitation order by requiring that the mother’s
access to the subject child be supervised. In an October 7, 2009
order (2009 order), Family Court modified a prior custody order by
awarding sole custody of the subject child to petitioner father and
granting liberal access to the mother. The 2009 order changed custody
from the mother to the father after the court determined that there
was a change in circumstances, i.e., the mother’s repeated frustration
of the father’s access and her failure to follow court orders. We
affirmed the 2009 order on appeal (Matter of Green v Bontzolakes, 83
AD3d 1401, 1402, lv denied 17 NY3d 703). The instant order limited
the mother’s access to supervised visitation based largely upon the
court’s finding that the mother, without notifying the father and in
violation of the 2009 order, absconded with the child, leaving the
country for a period of 39 days.
                                 -2-                         1034
                                                        CAF 12-00853

     We reject appellants’ contentions that the court erred in
determining that there was a change in circumstances and in imposing
the condition that the mother’s access to the child be supervised by
the Catholic Charities Therapeutic Supervised Visitation Program. The
court’s determination was “ ‘based upon a first-hand assessment of the
credibility of the witnesses after an evidentiary hearing, [and] is
entitled to great weight,’ ” and we conclude that it is supported by a
sound and substantial basis in the record (Matter of Harder v
Phetteplace, 93 AD3d 1199, 1200, lv denied 19 NY3d 808). The mother’s
violation of the 2009 order and her pattern of continued violation of
court orders constitute a sufficient change in circumstances,
particularly in light of her prolonged and intentional interference
with the father’s custodial rights and failure to communicate with him
(see Matter of Zwack v Kosier, 61 AD3d 1020, 1021, lv denied 13 NY3d
702; see also Matter of Owens v Garner, 63 AD3d 1585, 1586; Matter of
Tyrone W. v Dawn M.P., 27 AD3d 1147, 1148, lv denied 7 NY3d 705).
Likewise, the court’s determination that unsupervised visitation would
be detrimental to the child has a sound and substantial basis in the
record (see Matter of Binong Xu v Sullivan, 91 AD3d 771, 771-772; see
also Matter of Lane v Lane, 68 AD3d 995, 996-997). The mother put the
child at risk of emotional and intellectual harm by absconding with
her, causing her to miss over a month of school, and failing to
appreciate the importance of the child’s relationship with her father
(see Lane, 68 AD3d at 997; Matter of Spurck v Spurck, 254 AD2d 546,
547-548; Chirumbolo v Chirumbolo, 75 AD2d 992, 993).

     We agree with appellants, however, that the court “erred in
failing to set a supervised visitation schedule, implicitly leaving it
to the supervisor to determine” (Matter of Bonthu v Bonthu, 67 AD3d
906, 907, lv dismissed 14 NY3d 852; see Wills v Wills, 283 AD2d 1023,
1024). By ordering only that visitation “shall take place through the
Catholic Charities Therapeutic Supervised Visitation program,” the
court improperly delegated its authority to the supervising agency
(see Matter of St. Pierre v Burrows, 14 AD3d 889, 892; see also Matter
of Mackenzie V. v Patrice V., 74 AD3d 1406, 1407-1408). We note in
addition that the court erred in merely indicating that “access should
include the child’s siblings, if that can be accommodated by the
program.” If the court determined that sibling visitation is indeed
in the best interests of the child, the court should specify in its
order that the agency or organization designated to supervise
visitation must be able to accommodate sibling visits. We therefore
modify the order accordingly, and we remit the matter to Family Court
to determine the access schedule and whether sibling visitation shall
occur.




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
