| Matter of Taylor v Jackson |
| 2012 NY Slip Op 04246 [95 AD3d 1604] |
| May 31, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Juan E. Taylor II, Appellant, v ShawtainJackson, Respondent. |
—[*1] Liam G.B. Murphy, Groton, for respondent. Francisco P. Berry, Ithaca, attorney for the children.
Egan Jr., J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.),entered June 28, 2011, which, in a proceeding pursuant to Family Ct Act article 6, grantedrespondent's motion to dismiss the amended petition.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofthree children (born in 2002, 2004 and 2005). In September 2005, and upon the father's default,Family Court awarded the mother custody of the children with visitation to the father at themother's discretion. Following additional proceedings in 2009, a similar order was entered inApril 2010—again upon the father's default and again awarding custody to the mother andvisitation to the father at her discretion.
In October 2010, the father commenced the instant proceeding pro se seeking modification ofthe April 2010 order. In response to the mother's motion to dismiss, the father—with theaid of counsel—filed an amended petition seeking the same relief. Family Court grantedthe mother's subsequent motion to dismiss, finding that the father failed to allege sufficient factsto warrant a hearing. This appeal by the father ensued.
"It is well settled that a petition for modification of a prior custody arrangement must [*2]allege facts which, if established, would afford the petitioner a basisfor relief and, further, that such petitioner must make a sufficient evidentiary showing to trigger ahearing in this regard" (Matter of Audrey K. v Carolyn L., 294 AD2d 624, 624 [2002][citation omitted]; see Matter ofChristopher B. v Patricia B., 75 AD3d 871, 872 [2010]; Matter of Bjork v Bjork, 23 AD3d784, 785 [2005], lv denied 6 NY3d 707 [2006]). The father failed to make such ashowing here. The vast majority of the father's allegations—as set forth in the amendedpetition—relate to incidents and conduct that predate Family Court's April 2010 order. Tothe extent that the father referenced events that transpired subsequent thereto, we find hisconclusory and otherwise unsubstantiated allegations in this regard to be insufficient to warrantan evidentiary hearing (see Matter of Bjork v Bjork, 23 AD3d at 785; Matter ofAudrey K. v Carolyn L., 294 AD2d at 625; compare Matter of Christopher B. v PatriciaB., 75 AD3d at 872-873). Accordingly, Family Court properly dismissed that portion of thefather's amended petition seeking to modify the prior custody arrangement.
We reach a different conclusion, however, as to the issue of visitation. "[U]nless visitation isinimical to the [children's] welfare, Family Court is required to structure a schedule which resultsin frequent and regular access by the noncustodial parent" (Matter of William BB. v Susan DD., 31 AD3d 907, 908 [2006][internal quotation marks and citations omitted]). In so doing, Family Court cannot "delegate itsauthority to determine visitation to either a parent or a child" (William-Torand v Torand, 73 AD3d 605, 606 [2010]; see Matter of Taylor v Fry, 63 AD3d1217, 1219 [2009]; Matter of William BB. v Susan DD., 31 AD3d at 908; cf. Matter of Holland v Holland, 92AD3d 1096, 1096-1097 [2012]), which is precisely what occurred here. Accordingly, FamilyCourt's order is modified to that extent, and this matter is remitted to Family Court for a hearingin this regard.
Peters, P.J., Mercure, Rose and Lahtinen, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as dismissed that part of the amendedpetition seeking modification of the prior visitation order; matter remitted to the Family Court ofTompkins County for further proceedings not inconsistent with this Court's decision; and, as somodified, affirmed.