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

233
CAF 11-02192
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF VALENTINA RULINSKY,
PETITIONER-RESPONDENT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JERMAINE WEST, RESPONDENT-PETITIONER-APPELLANT.


PAUL M. DEEP, UTICA, FOR RESPONDENT-PETITIONER-APPELLANT.

MONICA R. BARILE, ATTORNEY FOR THE CHILD, NEW HARTFORD.


     Appeal from an order of the Family Court, Oneida County (Randal
B. Caldwell, J.), entered October 7, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted the
petition of petitioner-respondent seeking to modify a prior order of
custody and visitation, and denied the petition of respondent-
petitioner for an order of contempt based on the alleged failure of
petitioner-respondent to comply with the prior order.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this proceeding pursuant to article 6 of the
Family Court Act, respondent-petitioner father appeals from an order
that, following a hearing, granted the petition of petitioner-
respondent mother seeking to modify a prior order of custody and
visitation (prior order) by terminating visitation with the father,
who was incarcerated. The order, inter alia, also denied the father’s
petition for an order of contempt based on the alleged failure of the
mother to comply with the prior order. The prior order required the
mother to bring the parties’ biological child, who was 10 years old at
the time of the commencement of this proceeding, to visit the father
at the Auburn Correctional Facility twice a year.

     We reject the father’s contention that the mother failed to
establish the requisite change in circumstances warranting a review of
the prior order. “An order of visitation cannot be modified unless
there has been a sufficient change in circumstances since the entry of
the prior order [that], if not addressed, would have an adverse effect
on the child[’s] best interests” (Matter of Anderson v Roncone, 81
AD3d 1268, 1268, lv denied 16 NY3d 712 [internal quotation marks
omitted]; see also Matter of Ragin v Dorsey [appeal No. 1], 101 AD3d
1758, 1758). “[W]hile not dispositive, the express wishes of older
and more mature children can support the finding of a change in
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                                                         CAF 11-02192

circumstances” (Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047; see
Matter of VanDusen v Riggs, 77 AD3d 1355, 1356; Matter of Burch v
Willard, 57 AD3d 1272, 1273). Here, the evidence establishes that,
since the entry of the prior order and as the child has matured, she
has developed a strong desire not to visit the father. Additionally,
Family Court credited the mother’s testimony that the father was using
visitation time to attempt to reconcile with the mother rather than to
interact with their child. Thus, we conclude that there has been a
sufficient change of circumstances to warrant “ ‘an inquiry into
whether the best interests of the [child] warranted a change in
custody’ ” (Matter of Dingeldey v Dingeldey, 93 AD3d 1325, 1326; see
Matter of Bowers v Bowers, 266 AD2d 741, 742).

     We further reject the father’s contention that the record fails
to support the court’s determination that visitation with him was not
in the child’s best interests. We recognize that “[v]isitation with a
noncustodial parent is presumed to be in a child’s best interests even
when the parent is incarcerated” (Matter of Chambers v Renaud, 72 AD3d
1433, 1434; see Matter of Flood v Flood, 63 AD3d 1197, 1198). In
order to rebut the presumption, the party opposing visitation must
establish by a preponderance of the evidence “that under all the
circumstances visitation [with the incarcerated parent] would be
harmful to the child’s welfare” (Matter of Granger v Misercola, ___
NY3d ___, ___ [Apr. 30, 2013]). Here, the court did not make a
determination with respect to whether the presumption in favor of
visitation with the father had been rebutted. Nevertheless, we
conclude that the record is adequate to enable us to determine that
the mother established by a preponderance of the evidence that, under
all the circumstances, “visitation would be harmful to the child’s
welfare” (id. at ___; see generally Matter of Vincent A.B. v Karen T.,
30 AD3d 1100, 1101, lv denied 7 NY3d 711).

     With respect to the analysis of the best interests of the child
in the absence of any presumption, we note that visitation “need not
always include contact visitation at the prison” (Matter of Ruple v
Harkenreader, 99 AD3d 1085, 1087; see Matter of Cole v Comfort, 63
AD3d 1234, 1235, lv denied 13 NY3d 706; Matter of Conklin v Hernandez,
41 AD3d 908, 910). Moreover, “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,” i.e., is not “supported by a sound
and substantial basis in the record” (Matter of Krug v Krug, 55 AD3d
1373, 1374). While the fact that the father “ ‘is incarcerated will
not, by itself, render visitation [with him] inappropriate’ ” (Matter
of Thomas v Thomas, 277 AD2d 935, 935), that fact, when considered in
conjunction with the evidence establishing the father’s lack of prior
contact with the child, the father’s failure to interact with the
child during visitation and the child’s express desire not to visit
with the father, provides a sufficient basis for the court’s
determination that terminating visitation with the father was in the
child’s best interests (see Matter of Bougor v Murray, 283 AD2d 695,
695-696; Bowers, 266 AD2d at 742). We therefore find no basis to
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                                                         CAF 11-02192

disturb the court’s determination, which was made after a Lincoln
hearing and a full evidentiary hearing at which the father was present
and testified (cf. Thomas, 277 AD2d at 935).

     The father failed to preserve for our review his contention that
the court should have dismissed the modification petition due to the
mother’s alleged lack of compliance with his discovery demand inasmuch
as a “request for the imposition of a penalty pursuant to CPLR 3126 is
improperly made for the first time on appeal” (Rivera v City of New
York, 90 AD3d 735, 736). We further reject the father’s contention
that the court erred in dismissing his petition seeking an order of
contempt for the mother’s alleged failure to comply with the prior
order. Where a party “seeks an adjudication of civil contempt based
upon a violation of a court order, he or she must establish a willful
and deliberate violation of a lawful court order expressing a clear
and unequivocal mandate” (Collins v Telcoa Intl. Corp., 86 AD3d 549,
549; see Matter of Hicks v Russi, 254 AD2d 801, 801), and that, “as a
result of the violation, a right or remedy of a party to the
litigation was prejudiced” (Matter of Hughes v Kameneva, 96 AD3d 845,
846; see Judiciary Law § 753; McCain v Dinkins, 84 NY2d 216, 226).
Here, the mother’s act of filing the modification petition was a
proactive measure in the best interests of the child and is not the
type of willful and deliberate violation punishable by contempt.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
