| Matter of Otsego County Dept. of Social Servs. v Mathis |
| 2010 NY Slip Op 02036 [71 AD3d 1298] |
| March 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Otsego County Department of Social Services,Respondent, v Sarah Mathis, Appellant, et al., Respondent. |
—[*1] Steven Ratner, Otsego County Department of Social Services, Cooperstown, for respondent. Victor B. Carrascoso, Law Guardian, Cooperstown.
Malone Jr., J. Appeal from an order of the Family Court of Otsego County (Ghaleb, J.),entered December 31, 2008, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act art 6, to modify a prior order of custody and visitation.
In February 2008, Family Court (Coccoma, J.) ordered petitioner to provide supervision forthe visitation of respondent Lauren Wormuth (hereinafter the father), a registered sex offender,with his child (born in 2006). Petitioner commenced this proceeding five months later seeking tobe relieved of its obligation to supervise the father's visits when it became aware that both thefather and respondent Sarah Mathis (hereinafter the mother), who maintained sole physicalcustody of the child, had relocated outside of Otsego County. Following a hearing on thatpetition, Family Court (Ghaleb, J.) found the mother to be in violation of the prior custody orderby moving out of Otsego County without permission of the court and, accordingly, directed,among other things, the mother to provide the father with weekly supervised visits at [*2]her own expense.
Initially, the evidence at the hearing was sufficient to establish that neither the mother northe father resides in Otsego County and, accordingly, Family Court's determination thatpetitioner is relieved of its obligation to provide supervision for the father's visits has a soundand substantial basis in the record and will not be disturbed. However, the mother's maincontention on appeal is that Family Court exceeded the scope of its authority by finding her to bein violation of the February 2008 order, an argument in which petitioner and the Law Guardianjoin.
We agree. The only issue before Family Court was petitioner's request to be relieved of itsobligation to provide supervision for the father's visits, a fact that the court acknowledged at thehearing. Nowhere in that petition was it alleged that the mother had violated the prior order ofcustody and visitation and, thus, the mother had no notice that such a finding could be madeagainst her. Notably, the order that petitioner sought to modify did not specifically prohibit themother from leaving Otsego County, nor did it require her to obtain permission from the courtbefore doing so. That order reaffirmed sole custody to the mother and the only mention of anyresidency restriction was that "the primary residence of the [c]hild shall not be relocated from the[m]other's residence." Considering that this mandate does not necessarily restrict the mother toan Otsego County location, and given the prejudice to the mother in that she did not have noticethat her relocation would be at issue in this proceeding such that it would subject her to any sortof penalty, we must reverse that part of Family Court's order as an abuse of discretion (seeMatter of Williams v Taylor, 234 AD2d 809, 810 [1996]; see also Matter of Blaize F., 50 AD3d1182, 1184-1185 [2008]). Further, the court's determination that, due to her violation of theprior order, the mother was responsible for providing supervision for the father's visits at herown expense must also be reversed. Even assuming that such direction was proper, consideringthat there is no longer any basis for it and in light of the fact that it was not disputed that thefather's visits must remain supervised given his sex offender status, the matter must be remittedto Family Court for a determination as to who should bear the costs, if any, associated with thesupervision of the father's visits.
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by reversing so much thereof as found respondent SarahMathis to be in violation of a prior order of visitation and required her to provide supervisedvisitation for respondent Lauren Wormuth at her own expense; matter remitted to the FamilyCourt of Otsego County for further proceedings not inconsistent with this Court's decision; and,as so modified, affirmed.