| Matter of Owens v Chamorro |
| 2014 NY Slip Op 01220 [114 AD3d 1037] |
| February 20, 2014 |
| Appellate Division, Third Department |
| In the Matter of Lois Nicole Owens,Respondent, v Leo J. Chamorro, Appellant. |
—[*1] James E. Konstanty, Oneonta, for respondent. Joseph A. Nalli, Fort Plain, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Otsego County (Lambert, J.),entered September 27, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for custody of the parties' children.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are theparents of two children (born in 2006 and 2007). In January 2012, the mothercommenced this proceeding in Family Court seeking an award of sole custody on thebasis that the father had not seen or supported the children since 2008. Both partiesattended the initial appearance in March 2012 and requested assigned counsel. The courtscheduled a pretrial conference to occur in April 2012 and advised the parties in personand in writing of the date. Upon the father's unexplained failure to appear for the Aprilconference, the court scheduled a fact-finding hearing and Lincoln hearing, andissued written notice to the parties, their counsel and the attorney for the childreninforming them that the matter was adjourned until August 10, 2012. On that date, thefather again did not appear. His assigned counsel requested an adjournment, stating thatthe father had encountered transportation difficulties. The mother and the attorney for thechildren opposed the adjournment, and Family Court denied the request. Following aLincoln hearing with the older child and a fact-finding hearing in which themother was the sole witness, the court granted the mother's request for sole custody andsuspended the father's right of visitation until such time as [*2]he petitioned for this relief. Rather than seeking such aremedy in Family Court, the father appeals.[FN1]
The father first contends that Family Court erred in declining to adjourn the hearing.The determination of whether to grant a request for an adjournment is entrusted to thesound discretion of the trial court, and it will not be disturbed unless that discretion isclearly abused (see Matter ofSteven B., 6 NY3d 888, 889 [2006]). While the father lived a significantdistance away, he had been advised of the hearing date more than four months before, ina notice warning that no oral requests for adjournment would be granted and that hisfailure to appear could be treated as a default. His previous failure to appear for the April2012 conference had frustrated the efforts of counsel, the mother and court personnel toresolve the matter promptly, and by the time of his second failure to appear, the mother'scustody petition had been pending for over eight months. Considering the allegations thatthe father had previously been wholly uninvolved in the children's lives for several years,we do not find it unreasonable to view his failure to attend two consecutive courtproceedings as part of a continuing pattern. We cannot say that the court improvidentlyexercised its discretion in refusing to delay the matter further (see Matter of Braswell vBraswell, 80 AD3d 827, 829 [2011]; Matter of Cukerstein v Wright, 68 AD3d 1367, 1368[2009]; Matter of Heyer v Heyer, 112 AD2d 539, 540 [1985]).
The father next contends that Family Court erred in suspending his right to visitation.As he asserts, visitation with a noncustodial parent is presumed to be in a child's bestinterests and should not be denied in the absence of substantial proof that contact wouldbe harmful to the child's welfare (see Matter of VanBuren v Assenza, 110 AD3d 1284, 1284[2013]; Matter of Culver vCulver, 82 AD3d 1296, 1297 [2011], appeal dismissed 16 NY3d 884[2011], lv denied 17 NY3d 710 [2011]). Nevertheless, the Court of Appeals hasrecently clarified that the standard of substantial proof "should not be interpreted in sucha way as to heighten the burden, of the party who opposes visitation, to rebut thepresumption . . . by a preponderance of the evidence" (Matter of Granger v Misercola,21 NY3d 86, 92 [2013]). To meet this burden, the opposing party must demonstrateby sworn testimony or documentary evidence that visitation would be harmful to thechild or that the noncustodial parent has forfeited the right of access (see id. at91-92).
Here, the mother testified that she has continuously resided with the children at thesame address that she shared with the father before he left the household in 2008.Thereafter, the mother has acted as the children's sole caretaker and, although she statedthat she "left the door open" for the father to visit, he made brief visits only once or twiceand allegedly never provided child support.[FN2]The mother testified that she does not have current contact information for the father,knows nothing about his circumstances or living situation and, thus, does not wish thechildren to leave her home to visit with him. She expressed qualified willingness for himto visit the children at her residence, but also stated that she was "not sure" if this wasadvisable because of her concern that forced contact with a person who the children didnot know might be harmful [*3]to them. At theconclusion of the hearing, both the attorney for the children and the mother's counselasked the court not to order visitation unless and until the father demonstrated an interestin developing his relationship with the children by applying for such relief.
A noncustodial parent's failure to avail himself or herself of opportunities forvisitation over a lengthy period of time is appropriately taken into account in consideringwhether visitation is appropriate, especially where, as here, the parent is "essentially astranger to the child[ren]" (Matter of Cole v Comfort, 63 AD3d 1234, 1236 [2009],lv denied 13 NY3d 706 [2009]; see Matter of Butler v Ewers, 78 AD3d 1667, 1667 [2010];Matter of Dantzler vMcKane, 48 AD3d 937, 938-939 [2008], lv denied 10 NY3d 709[2008]; Matter of Bougor v Murray, 283 AD2d 695, 695-696 [2001]). Withoutbreaching the older child's confidentiality, we note that Family Court made searchingefforts during the Lincoln hearing to ascertain the extent of her familiarity withthe father, her willingness to have contact with him and whether her attitude toward himhad been improperly influenced. Significantly, the record does not reveal that the fatherhas ever petitioned for visitation, and even after the mother initiated this proceeding, heneither filed a cross petition nor provided any other affirmative indication, through hiscounsel or otherwise, of what form of contact he wished to have or his plan for obtainingit.
Finally, we note that Family Court's order was, in effect, a temporary remedy that didnot absolutely foreclose the father's visitation, but instead expressly anticipated that hewould initiate contact by petitioning for such relief. It is most unfortunate that, ratherthan availing himself of this opportunity, the father chose to bring this matter for reviewon appeal. In light of all of the circumstances—in particular, the dearth ofevidence in the record that might have provided the court with a sound and substantialbasis for a visitation order—we find that the requirement for the father to petitionstrikes an appropriate balance between his right to an "opportunity to establish ameaningful relationship with [the children]" and his previous failure to do so (Matter of Russell v Simmons,88 AD3d 1080, 1081 [2011]). As Family Court's decision is supported by a soundand substantial basis in the record, it will not be disturbed (see Matter of Joshua SS. v AmyRR., 112 AD3d 1159, 1159 [2013]; Matter of Brown v Terwilliger, 108 AD3d 1047, 1048[2013], lv denied 22 NY3d 858 [2013]; Matter of Heyer v Heyer, 112AD2d at 540).
Peters, P.J., Lahtinen and Rose, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father's brief doesnot address the custody award; thus, any issues pertaining to that aspect of Family Court'sorder are deemed abandoned (see Matter of Timothy N. v Gwendolyn N., 92 AD3d 1155,1156 n [2012]).
Footnote 2: No testimony waselicited on this point, which was alleged in the mother's petition.