Opinion
481 CAF 18-00422
06-12-2020
In the Matter of Sivasubramaniam THURARAJAH, Petitioner-Appellant, v. Kandasamy MANJULA, Respondent-Respondent. In the Matter of Kandasamy Manjula, Petitioner-Respondent, v. Sivasubramaniam Thurarajah, Respondent-appellant.
PAMELA THIBODEAU, BUFFALO, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT. LEAH A. BOUQUARD, BUFFALO, ATTORNEY FOR THE CHILDREN.
PAMELA THIBODEAU, BUFFALO, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.
LEAH A. BOUQUARD, BUFFALO, ATTORNEY FOR THE CHILDREN.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Petitioner-respondent father appeals from an order that, inter alia, awarded sole custody of the subject children to respondent-petitioner mother and directed that the father shall have no access to the children. Initially, contrary to the father's contention, the gaps in the hearing transcript caused by inaudible portions of the audio tape recording "are not so significant as to preclude meaningful review of the order" ( Matter of Bibbes-Turner v. Bibbes , 174 A.D.3d 1506, 1507, 103 N.Y.S.3d 892 [4th Dept. 2019] ; see Matter of Savage v. Cota , 66 A.D.3d 1491, 1492, 885 N.Y.S.2d 798 [4th Dept. 2009] ).
Contrary to the father's further contention, the record provides no basis for concluding that Supreme Court deprived him of due process by directing that the same interpreter be used for both parties (see generally 22 NYCRR 217.1 [a]; People v. Robles , 72 A.D.3d 1520, 1521, 899 N.Y.S.2d 780 [4th Dept. 2010], lv denied 15 N.Y.3d 777, 907 N.Y.S.2d 466, 933 N.E.2d 1059 [2010] ; People v. Rivera , 298 A.D.2d 120, 120, 747 N.Y.S.2d 379 [1st Dept. 2002], lv denied 99 N.Y.2d 563, 754 N.Y.S.2d 216, 784 N.E.2d 89 [2002] ).
The father also contends that the court erred in denying him any visitation or contact with the children. Contrary to the father's contention, we conclude that there is a sound and substantial basis in the record to support the court's determination. The record establishes that the father committed acts of domestic violence against the mother in the presence of the children, and the court found that the father's testimony denying such behavior was not credible (see generally Matter of Bloom v. Mancuso , 175 A.D.3d 924, 926, 108 N.Y.S.3d 575 [4th Dept. 2019], lv denied 34 N.Y.3d 905, 2019 WL 6873492 [2019] ). In addition, the testimony of a licensed trauma therapist established that the children suffered ongoing stress as a result of attending supervised visitation with the father, which had a harmful effect on their emotional and mental well-being (see Matter of MacEwen v. MacEwen , 214 A.D.2d 572, 572, 625 N.Y.S.2d 75 [2d Dept. 1995] ). While we agree with the father that the court erred in failing to record the in camera interviews with the children (see CPLR 4019 [a] ), we conclude that the error does not require reversal under the circumstances of this case (see Ladizhensky v. Ladizhensky , 184 A.D.2d 756, 758, 585 N.Y.S.2d 771 [2d Dept. 1992] ).
Finally, we note that, although the court's order states that it "shall be deemed a change in circumstances to allow the filing of a [p]etition for visitation by [the father] upon the completion of a 52 week domestic violence program and ... a mental health evaluation," the order does not require the father to complete such a program and evaluation as a prerequisite to filing a future petition (see Matter of Cramer v. Cramer , 143 A.D.3d 1264, 1264-1265, 38 N.Y.S.3d 867 [4th Dept. 2016], lv denied 28 N.Y.3d 913, 2017 WL 524677 [2017] ; cf. Matter of Ordona v. Cothern , 126 A.D.3d 1544, 1546, 6 N.Y.S.3d 860 [4th Dept. 2015] ). Indeed, nothing in the order prevents the father from supporting a future petition with a showing of a different change in circumstances (see Cramer , 143 A.D.3d at 1265, 38 N.Y.S.3d 867 ).