Matter of Andreija N. (Michael N.)

Summary

The New York Appellate Division, Third Department, reversed a Family Court order vacating a stay-away order of protection in an abuse and neglect proceeding. The court held that good cause had not been shown to permit unsupervised overnight visitation before the record was further developed, particularly in light of alleged sexual abuse and threatening conduct toward the mother and others.

Holdings

1. Family Court abused its discretion by vacating the stay-away order of protection without good cause shown. The decision was premature because the fact-finding record had not been adequately developed, including the opportunity to subpoena and cross-examine the forensic psychologist and to hear from the child's therapist.
2. Family Court should not have diminished the respondent's threatening conduct as merely unconventional. Domestic violence is not limited to physical violence, and the respondent's threats and efforts to control or coerce the mother and others associated with the custody case were relevant to whether unsupervised parenting time was in the child's best interests.
3. The court considered the challenged text messages and Facebook postings because the respondent acknowledged that the submissions had been reviewed by the psychologist, whose reports identified and discussed those materials, and because the child's best interests were paramount.

Questions Presented

1. Whether Family Court had good cause under Family Court Act § 1061 to vacate the stay-away order of protection before the evidentiary record was fully developed.
2. Whether the respondent's threatening conduct toward the mother and others associated with the custody case was relevant to determining the child's best interests and whether unsupervised overnight parenting time should be permitted.
3. Whether the Appellate Division could consider materials submitted on appeal concerning the respondent's messages and social-media postings when those materials were reflected in the forensic psychologist's reports.

Disposition

reversed_and_remanded