Summary
The Appellate Division, Third Department affirmed a Family Court order modifying visitation and limiting the father's parenting time to supervised and/or public-place visitation. The court held that the mother established a change in circumstances based on inadequate supervision, conditions in the father's home, and hygiene concerns, and that the visitation restrictions were in the child's best interests.
Topics
Practice areas
Questions Presented
- Whether the mother established a change in circumstances sufficient to warrant modification of the existing custody and visitation order.
- Whether Family Court properly determined that supervised and/or public-place visitation was in the child's best interests.
- Whether the father's remaining challenges to the custody determination had merit or were abandoned.
Holdings
- The mother established a change in circumstances since entry of the September 2018 custody order, based on the father's inadequate supervision, conditions associated with a marihuana-growing operation in his home, and ongoing hygienic deficiencies.
- Family Court properly imposed supervised and/or public-place visitation because the record supported a finding that unsupervised or overnight visitation would be detrimental to the child's safety and welfare.
- Any challenge to Family Court's custody determination was deemed abandoned because the father did not raise custody issues on appeal.
Key quotations
“A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child” (2023 NY Slip Op 01114, at *1)
“we accord great deference to its factual findings and credibility assessments and will not disturb its determination if supported by a sound and substantial basis in the record” (2023 NY Slip Op 01114, at *2)
“Ultimately, Family Court has broad discretion in determining whether supervised visitation is warranted, and its decision will only be disturbed by this Court when it lacks a sound and substantial basis in the record” (2023 NY Slip Op 01114, at *3)
Factual background
The child, born in 2009, had exhibited concerning behavior during interactions with other children, including paternal half siblings. While in the father's care, an incident involving a paternal half sibling occurred, which Family Court attributed to the father's inadequate supervision. The record also supported findings concerning a marihuana-growing operation in the father's home, suspicious conduct and a marihuana odor observed during an investigation, and ongoing hygienic problems at the father's residence. Family Court concluded that unsupervised parenting time was not in the child's best interests and limited the father's visitation to supervised or public places.
Procedural history
The parties' September 2018 custody order granted the mother sole legal custody and primary placement, with the father receiving alternating-weekend parenting time. The mother petitioned to modify the order and limit the father's parenting time; after an investigation, a fact-finding hearing, and a Lincoln hearing, Family Court granted the petition and dismissed the father's cross-petition. The father appealed to the Appellate Division, which affirmed.