Summary
This Appellate Division, Third Department decision reviews a Family Court order modifying a prior visitation arrangement by suspending the paternal grandmother's contact with a child and dismissing her enforcement petition. The appellate court finds the challenge to the visitation suspension moot due to a separate consent order of protection barring all communication between the grandmother and the child. Regarding the enforcement petition, the court affirms the Family Court's dismissal, concluding that the maternal grandparents did not willfully violate any court order and that the child's own resistance prevented visitation.
Topics
Practice areas
Questions Presented
- Whether the Family Court abused its discretion in suspending the paternal grandmother's visitation.
- Whether the dismissal of the paternal grandmother's cross‑petition was proper.
Holdings
- The appellate court affirmed the Family Court's modification, finding no abuse of discretion.
- The appellate court affirmed the dismissal, finding no abuse of discretion because the statutory requirements were not satisfied.
- The appellate court held the visitation issue moot because the order of protection prevents any contact with the child.
Key quotations
“to establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the maternal grandparents had actual knowledge of the order's terms, and that their actions or failure to act defeated, impaired, impeded or prejudiced the paternal grandmother's rights”
“[a]lthough willfulness is not an element of civil contempt, inability of the alleged contemnor to comply with an order is a defense”
Factual background
The maternal grandparents have joint legal custody and primary physical custody of a child born in 2013. The paternal grandmother previously had visitation on alternating Saturdays and weekly phone contact. After the child's behavior deteriorated, the grandparents petitioned to suspend the paternal grandmother's visitation, which the Family Court granted. An order of protection later barred the paternal grandmother from any contact with the child.
Procedural history
Family Court modified a prior visitation order, suspending the paternal grandmother's visitation and phone contact based on the child's negative behavior and animosity. The paternal grandmother appealed the modification and the dismissal of her cross‑petition.