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 RESPONDENTAPPELLANT.

STEPHANIE N. DAVIS, ATTORNEY FOR THE CHILDREN, OSWEGO, APPELLANT PRO

SE.

PAUL M. DEEP, UTICA, FOR RESPONDENT-RESPONDENT AND PETITIONERRESPONDENT. 

 

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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CAF 14-01002 

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