| Matter of Garcia v Scruggs |
| 2007 NY Slip Op 07434 [44 AD3d 660] |
| October 2, 2007 |
| Appellate Division, Second Department |
| In the Matter of Alexa Garcia, Appellant, v WilliamAnthony Scruggs, Respondent. |
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In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Kings County (Hepner, J.), dated August 16, 2006, whichdismissed, without a hearing, her petition to modify an order of custody and visitation datedApril 11, 2006.
Ordered that the order is reversed, on the law and in the exercise of discretion, without costsor disbursements, the petition to modify the order of custody and visitation dated April 11, 2006is reinstated, and the matter is remitted to the Family Court, Kings County, before a differentjudge, to allow the petitioner additional time to effect service of the petition or make applicationfor alternative means of service, and to hear and determine the merits of the petition, in the eventservice is effected.
The parties, who were never married, appeared pro se on the mother's petition for custodyand executed a form worksheet which made provisions for joint custody and visitation. An orderawarding, inter alia, joint custody of the parties' infant child was signed by the Family Court onApril 11, 2006, providing for physical custody to the mother and liberal visitation for the father.The Family Court's order was premised on the contents of that worksheet. There is no indicationthat the Family Court gave any consideration to the allegation in the petition for custody that thefather had a history of verbal abuse toward the mother before making the award of joint custody.
The mother filed a petition on July 19, 2006 to modify the order of custody and visitationdated April 11, 2006, to award her sole custody. Multiple efforts at service of that petition on thefather, by a deputy sheriff, were unsuccessful. In the order appealed from, the Family Court,[*2]sua sponte, dismissed the petition on the ground that thepetition failed to allege a substantial change of circumstances. When the modification petitionwas filed, the Family Court conducted a check of the domestic violence registry, which revealedan outstanding temporary order of protection, issued by the New York City Criminal Court onthe same date as the mother had originally petitioned for custody. However, the Family Courtagain did not consider the issue of possible domestic violence on the merits of the petition.
Contrary to the Family Court's determination, under the circumstances of this case, theallegations in the modification petition that the father continued to have no involvement in thechild's life, as evidenced by the assertion that he failed to exercise any aspect of the liberalvisitation he had been awarded, and the existence of a temporary order of protection based uponan allegation of domestic violence, were sufficient to warrant a hearing to determine whether amodification of the joint custody award was in the best interests of the child (cf. Matter of Battista v Fasano, 41AD3d 712 [2007]; Matter of Powellv Blumenthal, 35 AD3d 615 [2006]; Matter of Held v Gomez, 35 AD3d 608 [2006]).
We also note that an award of joint custody is inappropriate if the parents have evidenced aninability or an unwillingness to cooperate regarding matters concerning their child (see Blissv Ach, 56 NY2d 995 [1982]; Matterof Fishburne v Teelucksingh, 34 AD3d 804 [2006]; Amari v Molloy, 293 AD2d431 [2002]). It is also appropriate to consider the impact of domestic violence, if found to exist,on the best interests of the child (see Domestic Relations Law § 240 [1]; Matter of Rodriguez v Guerra, 28AD3d 775 [2006]). Prudenti, P.J., Santucci, Fisher and Angiolillo, JJ., concur.