Matter of Palazzolo v. Giresi-Palazzolo

138 A.D.3d 866, 28 N.Y.S.3d 348

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 13, 2016
• Docket: 2015-02867
• Status: Published

Opinion

Appeal from an order of the Family Court, Queens County (Anne-Marie Jolly, J.), dated March 26, 2015. The order, in effect, after a hearing, dismissed a violation petition.

Ordered that the order is affirmed, without costs or disbursements.

The father commenced this violation proceeding pursuant to Family Court Act article 6 against the mother, alleging that she violated a prior court order directing her to enroll the subject children in therapy. At a hearing, the mother testified that on the day of the prior court order, she scheduled an intake appointment for the children. She subsequently had the children complete their intake appointment, and scheduled the children’s first therapy session. However, the mother asserted that the children, who were teenagers, adamantly refused to attend the therapy appointment.

To establish a willful violation of a Family Court order, the petitioner has the burden of proving his or her case by clear and convincing evidence (see Matter of Cobane v Cobane, 57 AD3d 1320, 1322-1323 [2008]; Matter of Blaize F, 48 AD3d 1007, 1008 [2008]). Under the facts of this case, the Family Court properly found that the father failed to establish by clear and convincing evidence that the mother wilfully violated the Family Court order to have the subject children attend therapy. Accordingly, the Family Court properly dismissed the violation petition.

Balkin, J.P., Roman, Maltese and Connolly, JJ., concur.