| Matter of Taylor v Fry |
| 2009 NY Slip Op 04320 [63 AD3d 1217] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey Taylor, Appellant, v Tasha Fry,Respondent. (And Two Other Related Proceedings.) |
—[*1] Michael J. Sullivan, Law Guardian, Vestal.
Spain, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered June 6, 2008, which, among other things, dismissed petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, for modification of a prior order of custody andvisitation.
The parties are the parents of a child born in 2004. In a consent order entered in March 2007,respondent (hereinafter the mother) was continued as the sole custodial parent of the child andpetitioner (hereinafter the father) was granted supervised visitation for a six-month period andthen reasonable unsupervised visitation "as the parties may agree." No appeal was taken fromthat order.[FN*]In a December 2007 petition, the father sought a modification of the March 2007 visitation orderalleging that he had been denied unsupervised visitation by the mother and, in a second petition,that the mother had also denied him supervised visitation. Thereafter, the mother filed amodification petition seeking the continuation of supervised visitation.[*2]
After a full hearing, Family Court found that the motherhad "unreasonably precluded" the father from supervised visitation with the child, but declinedto find a willful violation. The court directed that the mother no longer interfere with "frequentand regular" visitation between the father and the child, and that supervised visitation shouldcontinue, specifying five hours on alternate Saturdays under the supervision of the child'smaternal grandmother. The court's order also provided the direction that visitation may beunsupervised or overseen by different supervisors and at different periods of time, as the partiescan agree. The father has appealed asserting that (1) Family Court erred in denying his requestfor a specific schedule of visitation at his aunt's home and in not setting a date certain forunsupervised visits to begin and (2) the mother should have been sanctioned for her obstructivebehavior.
As with custody, an existing visitation order will be modified only if the applicantdemonstrates a change in circumstances that reflects a genuine need for the modification so as toensure the best interests of the child (see Dwyer v De La Torre, 260 AD2d 773, 773-774[1999]; Matter of Reese v Jones, 249 AD2d 676, 677 [1998]). In situations where aparent "is either unable or unwilling to discharge his or her parental responsibility properly"(Matter of Kathleen OO., 232 AD2d 784, 786 [1996]), unsupervised visitation may bedeemed detrimental to the child's safety (see Tait v Tait, 44 AD3d 1142, 1143 [2007]; Matter ofKathleen OO., 232 AD2d at 786). Here, there is record testimony that since the March 2007order, the father, who sustained a brain injury in 2000 and also suffers from a back injury, hashad lapses of memory, has fallen asleep while visiting with the child apparently due to hismedication and, on more than one occasion, left the toddler alone without advising the personsupervising his visitation that he was leaving the child unattended. The father testified and, withfew exceptions, denied these allegations.
According deference, as we must, to Family Court's credibility determinations (seeMatter of Larry v O'Neill, 307 AD2d 410, 411 [2003]), we find ample proof in the record forFamily Court's conclusion that the father's ability to properly care for the child is diminished byhis ailments, his medication and his lack of attentiveness. In light of this evidence, there is asound and substantial basis for Family Court's decision to continue supervised visitation.Likewise, there is more than ample evidence in the record to support the court's decision tocontinue the supervision of the father's visits with the maternal grandmother, unless the partiescan agree to an alternate person. The grandmother is not only unequivocally willing to providesupervision, but continues to foster a positive relationship between the father and the child(see Matter of Taylor v Fry, 47 AD3d at 1132).
However, Family Court erred by improperly delegating to the parties—essentially tothe mother—the court's responsibility to determine when, in the child's best interests, thefather is capable of caring for the child without supervision. While the expansion of thefrequency and the choice of the supervisor can be appropriately left to the agreement of theparents, the court's authority with respect to when visitation will be unsupervised "can no morebe delegated to one of the parties than it can be to a child or to a therapist" (Matter of William BB. v Susan DD.,31 AD3d 907, 908 [2006] [citation omitted]; see Matter of Gaitor v Morrissey, 47 AD3d 975, 976-977 [2008],appeal dismissed 10 NY3d 890 [2008]; Matter of St. Pierre v Burrows, 14 AD3d 889, 892 [2005]).Accordingly, when the father can establish that he is truly capable of caring for the child withoutsupervision, a petition seeking modification can be made to the court.
As for the father's assertions that the mother should have been sanctioned for what FamilyCourt described as "unreasonably" depriving the father of contact with the child, there isconflicting testimony as to what degree the mother frustrated the father's attempts to obtain [*3]visitation and what role the father played in his failure to assert hisright to the ordered visitation. When viewed as a whole, the record evidence supports the court'sreluctance to find a willful violation of the previous order of visitation and, instead, its decisionto admonish the mother not to interfere with the relationship between father and child. Wereiterate that warning by directing that the mother no longer interfere with the father's right to thesupervised visitation ordered by Family Court.
We have considered the father's remaining contentions and find them to be unavailing.
Mercure, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as delegated to the parties theauthority to modify the requirement that petitioner's visitation with the child be supervised;petitioner's visitation shall be supervised until further order of the Family Court of BroomeCounty; and, as so modified, affirmed.
Footnote *: This Court had previouslyaffirmed a 2006 Family Court order of custody and indefinite supervised visitation (Matter of Taylor v Fry, 47 AD3d1130 [2008]).