Summary
The Appellate Division, Third Department affirmed the dismissal of the father's petition alleging that the mother violated a prior custody and visitation order. The court held that the mother’s rejection of proposed supervisors and therapeutic visitation providers was supported by legitimate concerns and did not defeat, impair, impede, or prejudice the father’s rights. The court deferred to Family Court’s credibility determinations and concluded that no violation of the 2019 order had been established.
Topics
Practice areas
Questions Presented
- Whether the mother violated the 2019 custody and visitation order by refusing to approve the father's proposed supervisors or therapeutic-visitation providers.
- Whether the father established by clear and convincing evidence the elements necessary to enforce the custody order.
- Whether Family Court abused its discretion or improperly resolved the credibility issues in dismissing the enforcement petition.
Holdings
- The mother did not violate the 2019 custody and visitation order because her objections to the father's proposed supervisors and providers were grounded in legitimate concerns and her conduct was not intended to defeat, impair, impede, or prejudice the father's parenting-time rights.
- Family Court did not abuse its discretion in dismissing the enforcement petition.
Key quotations
“In order to prevail on a petition seeking to enforce provisions of a custody order, "a proponent must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order's terms, [and] that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent"” (*1)
“Indeed, a violation does not arise from a failure of the parties to agree” (*2)
Factual background
A 2019 order awarded the mother sole legal custody and primary physical custody of the parties' two children and permitted the father parenting time only in a supervised or therapeutic setting. The parties repeatedly disagreed over proposed supervisors and providers, with the mother objecting to several of the father's proposals based on their qualifications, location, lack of experience, or relationship to the father, while advocating professional therapeutic supervision in light of the children's needs and the father's prior conduct. Family Court credited the mother's testimony and found that her conduct was undertaken in good faith and did not defeat, impair, impede, or prejudice the father's rights.
Procedural history
A 2019 custody order granted the mother sole legal and primary physical custody and gave the father parenting time that was to be supervised or therapeutic. After the parties failed to agree on a supervisor or provider, the father filed a 2022 enforcement petition alleging that the mother unreasonably rejected his proposed supervisors and providers. Following a multi-day fact-finding hearing, Family Court dismissed the petition, finding no violation or prejudice; the Appellate Division affirmed.