Gabriel S. v. Alphonso S. , 953 N.Y.S.2d 498 ( 2012 )

Order, Family Court, Bronx County (Alma Cordova, J.), entered on or about November 12, 2009, which granted petitioner Keisha Gabriel S. a five-year order of protection against respondent Alphonso S. and order, Supreme Court, Bronx County (La Tia W. Martin, J.), entered on or about November 17, 2010, which denied respondent Alphonse S.’s application seeking modification of his access/visitation schedule with the parties’ two children, unanimously affirmed, without costs.

Respondent’s participation in the hearing via telephone did not deprive him of his due process rights (see Matter of Paul Antoine Devontae R. [Paul R.], 78 AD3d 610, 611 [1st Dept 2010], lv denied 16 NY3d 707 [2011]), and there is no reason to disturb the hearing court’s credibility determination (see Matter of Everett C. v Oneida P., 61 AD3d 489 [1st Dept 2009]). The court’s decision was appropriate given that respondent is incarcerated and did not request to be produced for the hearing. With regard to respondent’s Supreme Court application to modify the visitation stipulation to include in-person visitation with the parties’ children at the correctional facility where he is incarcerated, the court properly found that respondent failed to present any evidence that there has been a change in circumstances to warrant such a modification, or that in-person visitation is in the best interests of the children (see Matter of Santiago v Halbal, 88 AD3d 616, 617 [1st Dept 2011]).

We have considered respondent’s remaining arguments and find them unavailing. Concur — Gonzalez, EJ., Saxe, Catterson, Acosta and Gische, JJ.