ANTHONY v. KRISTINE (2007)

We agree with petitioner that Family Court erred in granting respondent's motion to dismiss the amended petition insofar as it alleges that respondent was interfering with his telephone contact with the parties' children.   The order of protection dated September 23, 2003 expressly provides that petitioner may have monitored telephone contact with the children twice weekly, and neither respondent nor the Law Guardian disputes that such contact has not been occurring.   There is no basis in the record for the statement of the court in its bench decision that those telephone calls are to be made solely at the discretion of the children.   Liberally construing the amended petition in favor of petitioner, as we must on a motion to dismiss for failure to state a cause of action (see Matter of Stefanel Tyesha C., 157 A.D.2d 322, 325, 556 N.Y.S.2d 280), we conclude that petitioner has stated a cause of action for the enforcement of the telephone contact provisions set forth in the order of protection.   We therefore modify the order accordingly.   In view of the language in the order of protection, we emphasize that the wishes of the children with respect to contact with petitioner are not controlling (see generally Matter of Kristine Z. v. Anthony C., 21 A.D.3d 1319, 1321, 803 N.Y.S.2d 331, lv. dismissed 6 N.Y.3d 772, 811 N.Y.S.2d 338, 844 N.E.2d 793;  Matter of Casolari v. Zambuto, 1 A.D.3d 1031, 767 N.Y.S.2d 369;  Matter of Jordan v. Jordan, 288 A.D.2d 709, 710, 732 N.Y.S.2d 478;  Matter of Iadicicco v. Iadicicco, 270 A.D.2d 721, 722, 704 N.Y.S.2d 377).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the amended petition insofar as it alleges that respondent was interfering with petitioner's telephone contact with the parties' children and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Monroe County, for further proceedings on that part of the amended petition.

MEMORANDUM: