| Matter of Fish v Fish |
| 2013 NY Slip Op 08478 [112 AD3d 1161] |
| December 19, 2013 |
| Appellate Division, Third Department |
| In the Matter of Shelby Sue Fish, Appellant, v Charles Fish,Respondent. |
—[*1] Donald O'Connor, Binghamton, attorney for the children.
Spain, J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered April 10, 2012, which dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the parents of two sons (born in 1998 and 2005). In September 2010,custody was temporarily transferred from petitioner (hereinafter the mother) torespondent (hereinafter the father) due to the mother's erratic and violent behavior, aswell as substance abuse and mental health concerns. Pursuant to an order issued in May2011 following a hearing, custody was transferred to the father, and the mother wasgranted supervised visitation with the children on a weekly basis and additional visitationas agreed to by the parties (seeMatter of Fish v Fish, 100 AD3d 1049 [2012]). In August 2011, the mothercommenced this proceeding seeking modification of that custody and visitation order.Following a hearing held in April 2012, Family Court found that the mother failed toestablish a change in circumstances warranting modification of the prior order anddismissed the petition. The mother now appeals.
The proponent of a modification of custody or visitation petition must "demonstrate'a change in circumstances that reflects a genuine need for the modification so as toensure the best interests of the child' " (Matter of Kashif II. v Lataya KK., 99 AD3d 1075, 1077[2012], quoting Matter ofD'Angelo v Lopez, 94 AD3d 1261, 1262 [2012]). Although the motherapparently completed a substance abuse program, there was no testimony from hertreatment provider [*2]regarding her participation in theprogram, even though her treatment records were admitted into evidence. There was alsono medical testimony or evidence that the mother received treatment or counseling toaddress her mental health problems, although the mother testified that she completed sixmonths of mental health therapy. The testimony of the maternal grandmother and theparent aide who supervises the mother's visits with the children established only that theyhad observed the mother act appropriately with the children during her visits. Inasmuchas the mother's proof fell short of establishing the requisite change in circumstances towarrant a change in custody, we discern no basis upon which to disturb that aspect of theorder (see Matter of Clarkson vClarkson, 98 AD3d 1208, 1209 [2012]; Matter of Kerwin v Kerwin, 39 AD3d 950, 951 [2007]).
The mother also argues on appeal that Family Court's continuation of once-weeklyone-hour supervised visitation at the Family and Children's Society lacks a sound andsubstantial basis in the record. Although the prior (May 2011) order specifically allowed"such other, further and different visitation if both parties shall agree," at the hearing itwas established that the father permitted only two unsupervised visits in early 2011 at themother's home, in the presence of other family members. In his testimony, the fatherexpressed some concerns and requested certain conditions, but did not opposeunsupervised visitation, and indicated that the older son had a cell phone to communicatewith both parents; the father also acknowledged that the children were neither upset nornegatively affected by those visits. Although requested by the mother, there was noLincoln hearing with the boys, then ages 7 and 14, and the attorney for the childadvocated strongly in favor of increased unsupervised visitation, as he now urges onappeal.
In its order dismissing the mother's modification petition, Family Court did notaddress the necessity or justification for continuing the current visitation arrangement ormake any findings that the once-weekly highly restrictive supervised visitation continuedto be in the children's best interests or "that unsupervised visitation would be inimical tothe child[ren]'s welfare" (Matterof Johnson v Johnson, 13 AD3d 678, 678 [2004]; see Matter of Robert AA. vColleen BB., 101 AD3d 1396, 1397 [2012], lv denied 20 NY3d 860[2013]; Matter of Carter vJames, 4 AD3d 640, 641 [2004]). While finding that the two unsupervised visitsagreed to by the father had occurred "without adverse impact on the children," the courtin its order merely "advise[d] him to make further efforts to allow the boys someadditional contact with their mother beyond her weekly visits . . . aslong as he is confident that the visits will be attended by others who would be protectiveof the children" (emphasis added).
However, both the children and the noncustodial parent have a right to meaningfulvisitation (see Matter of Tropea v Tropea, 87 NY2d 727, 738 [1996]). "[I]nproviding for visitation that will be meaningful, the frequency, regularity and quality ofthe visits must be considered [and] [e]xpanded visitation is generally favorable absentproof that such visitation is inimical to a child's welfare" (Szemansco vSzemansco, 296 AD2d 686, 687 [2002] [internal quotation marks and citationsomitted]; see Valenza v Valenza, 143 AD2d 860, 862 [1988]). While FamilyCourt's best interests determination in visitation matters is ordinarily accorded greatdeference (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]), the court'sconsideration of numerous important factors is not apparent here. These include thechildren's ages, needs and wishes; the mother's progress with substance abuse treatment;the availability of adding supervised time or of additional supervisors of visitation,including family members; the passage of a great length of time with only highlyrestricted and limited supervised visits (since May 2011, at least); the fact that thevisitation facility did not allow the children's siblings (i.e., the mother's infant born inJune 2011 and adult daughter) or maternal family to attend; the father [*3]allowed only two unsupervised visits; the possibility ofattaching conditions to unsupervised visitation; and the fact that the mother had beenassessed as not posing a risk to herself or others in her treatment. The foregoing factors,among others, represent a change in circumstances requiring, at the least, a reassessmentof the existing visitation restrictions; however, on this record and in the absence offurther findings by Family Court, we are limited in our independent ability to determinewhether there is a genuine need to modify visitation to ensure the best interests of thechildren, that is, that the children would be well served by additional and/or unsupervisedvisitation (see Matter ofPoremba v Poremba, 93 AD3d 1115, 1116 [2012]; Matter of Bunger v Barry, 88AD3d 1082, 1082 [2011]).
Moreover, Family Court erred in "delegat[ing] its authority to determine visitation to. . . a parent" (Matter of Taylor v Jackson, 95 AD3d 1604, 1605 [2012][internal quotation marks and citation omitted]; see Matter of Nicolette I. [Leslie I.], 110 AD3d 1250, 1255[2013]; Matter of Mackenzie V.v Patrice V., 74 AD3d 1406, 1407 [2010]; Matter of Millett v Millett,270 AD2d 520, 522 [2000]). "Given the significant competing rights involved, namely, anoncustodial parent's right to visitation and [the] [child[ren]'s right to be protected from apotentially harmful parent" (Matter of Carter v James, 4 AD3d at 641 [citationomitted]), which we are unable to resolve on this record, and particularly given theprotracted passage of time since this April 2012 hearing and order, we remit to FamilyCourt for clarification or reconsideration, as it deems appropriate, of its decision on thescope of the mother's visitation.
Rose, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as dismissed that part of the petitionseeking to modify visitation; matter remitted to the Family Court of Broome County forfurther proceedings not inconsistent with this Court's decision and, pending saidproceedings, the visitation terms of the April 10, 2012 order, including supervisedvisitation, shall remain in effect as a temporary order until further order of the FamilyCourt regarding visitation; and, as so modified, affirmed.