Summary
This Appellate Division decision addresses a father's appeal from a Family Court order denying his motion to modify a prior custody and parental access arrangement. While the court found the father failed to demonstrate a sufficient change in circumstances to warrant a hearing, it reversed the lower court's delegation of the access schedule to the parents and child due to documented animosity and non-cooperation. The matter was remanded to the Family Court to establish a parental access schedule consistent with the child's best interests.
Topics
Practice areas
Questions Presented
- Whether the Family Court erred in delegating authority to determine parental access to the parties and child
- Whether the father demonstrated a subsequent change in circumstances sufficient to warrant modification of the April 2023 parental access order
Holdings
- A court may not delegate its authority to determine parental access to either a parent or a child.
- To modify an existing parental access arrangement, a showing of a subsequent change in circumstances is required; the father failed to make such a showing.
- The September 4, 2024 order is modified to grant the father's motion to vacate the therapeutic access provision and is affirmed in the remainder; the matter is remitted to the Family Court for further proceedings.
Key quotations
“The paramount concern in any custody or [parental access] determination is the best interests of the child, under the totality of the circumstances.” (*2)
“The determination of appropriate custody and parental access is entrusted to the sound discretion of the Family Court, and such determination will not be set aside unless it lacks a sound and substantial basis in the record.” (*2)
“A court may not delegate its authority to determine parental access to either a parent or a child.” (*2)
Factual background
The parties are the parents of a child born in 2009. An April 28, 2023 Family Court order, entered on the parties' consent, gave the mother sole legal and physical custody and granted the father supervised therapeutic parental access "as the parties and the child can agree." The father later moved to modify the order to obtain weekly or supervised access and to vacate the therapeutic provision, asserting that no such access had occurred. The record shows animosity, an order of protection against the father, and a lack of any parental access since the April 2023 order.
Procedural history
Father sought modification of the April 28, 2023 order granting supervised therapeutic access; Family Court denied the motion on September 4, 2024; father appealed to the Appellate Division.
Remand instructions
Remitted to the Family Court, Dutchess County, for a determination of the father's parental access in accordance with the best interests of the child.