Opinion
2012-03-16
In the Matter of James M. FOX, Petitioner–Respondent, v. Elaine H. FOX, Respondent–Appellant. (Appeal No. 2.).
Shirley A. Gorman, Brockport, for Respondent–Appellant. Susan Gray Jones, Canandaigua, for Petitioner–Respondent.
Shirley A. Gorman, Brockport, for Respondent–Appellant. Susan Gray Jones, Canandaigua, for Petitioner–Respondent. M. Kathleen Curran, Attorney for the Child, Canandaigua, for Sara F.
PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
In appeal No. 1, respondent mother appeals from an order granting petitioner father's motion to dismiss her petition for modification of the existing custody order with respect to custody and visitation (consent order) by awarding sole legal and physical custody of the parties' child to the father and suspending the mother's overnight visitation. In appeal No. 2, the mother appeals from an order granting the father's violation petition and the relief sought in his order to show cause by awarding sole legal and physical custody of the child to the father and suspending the mother's visitation with the child in its entirety. We note at the outset that the mother's appeal from the order in appeal No. 1 must be dismissed inasmuch as that order was superseded by the order in appeal No. 2 ( see generally Loafin' Tree Rest. v. Pardi [Appeal No. 1], 162 A.D.2d 985, 559 N.Y.S.2d 154). Indeed, Family Court issued the order in appeal No. 2 following the continuation of the hearing upon which the order in appeal No. 1 was based.
With respect to the order in appeal No. 2, we reject the mother's contention that the father failed to establish a change in circumstances since entry of the consent order to warrant reexamination of the visitation arrangement ( see Matter of Black v. Watson, 81 A.D.3d 1316, 1317, 916 N.Y.S.2d 559, lv. dismissed in part and denied in part 17 N.Y.3d 747, 929 N.Y.S.2d 66, 952 N.E.2d 1059). The consent order awarded the father sole legal and physical custody of the child and granted the mother two weeknight visits and overnight visitation on alternating Saturdays. The father testified that, since the entry of that order, the mother failed to comply with court-ordered psychiatric treatment, failed to return the child from visitation on one occasion, and filed unfounded child abuse complaints against him. The father further testified that the mother engaged in alienating behavior such as telling the child that she had to choose between the parents and that there could be fires at the father's house while the child was sleeping. We conclude that such testimony, which the court found to be credible, was sufficient to establish the requisite change in circumstances ( see Matter of Howden v. Keeler, 85 A.D.3d 1561, 1561, 924 N.Y.S.2d 880).
We agree with the mother in appeal No. 2, however, that the court's suspension of the mother's visitation with the child lacks a sound and substantial basis in the record ( see Matter of Lydia C., 89 A.D.3d 1434, 1436, 933 N.Y.S.2d 147). “When making a determination with respect to visitation, the most important factor is the best interests of the child” ( Matter of Balgley v. Cohen, 73 A.D.3d 1038, 1038, 900 N.Y.S.2d 659), and “[v]isitation may not be denied solely for reasons unrelated to the welfare of the child[ ]” ( Vasile v. Vasile, 116 A.D.2d 1021, 1021, 498 N.Y.S.2d 635). “In determining whether visitation between a parent and child should be suspended, the court is to apply a ‘best interest[s] of the child’ standard. However, it is presumed that parental visitation is in the best interest[s] of the child in the absence of proof that it will be harmful” ( Matter of Nathaniel T., 97 A.D.2d 973, 974, 468 N.Y.S.2d 768; see Matter of Mark C. v. Patricia B., 41 A.D.3d 1317, 1318, 837 N.Y.S.2d 473). Thus, “[t]he denial of visitation to a noncustodial parent constitutes such a drastic remedy that it should be ordered only when there are compelling reasons, and there must be substantial evidence that such visitation is detrimental to the child [ ]'s welfare” ( Vasile, 116 A.D.2d at 1021, 498 N.Y.S.2d 635; see Matter of Diedrich v. Vandermallie, 90 A.D.3d 1511, 934 N.Y.S.2d 735; Matter of Frierson v. Goldston, 9 A.D.3d 612, 614, 779 N.Y.S.2d 670).
Here, the record lacks the requisite “substantial evidence” that visitation with the mother is detrimental to the child's welfare ( Vasile, 116 A.D.2d 1021, 498 N.Y.S.2d 635; see Diedrich, 90 A.D.3d 1511, 934 N.Y.S.2d 735; Frierson, 9 A.D.3d at 614, 779 N.Y.S.2d 670). The record is clear, and the court specifically found, that the child wished to continue to visit the mother ( cf. Lydia C., 89 A.D.3d at 1436, 933 N.Y.S.2d 147; Matter of Jacobs v. Chadwick, 67 A.D.3d 1373, 890 N.Y.S.2d 226). The father testified that he did not observe any odd behavior when the child returned from visitation with the mother, and he acknowledged that the child was generally “happy” to visit her mother. The psychologist acknowledged that the mother loves the child and that the child is “functioning well,” and both parents testified that the child is thriving in school. Indeed, the Attorney for the Child told the court at the close of the hearing that she “certainly would never want to recommend that [the child] have no contact with her mother.”
We therefore modify the order in appeal No. 2 by vacating the directive suspending any and all periods of visitation between the mother and the child, and we remit the matter to Family Court to determine an appropriate visitation schedule, which may include supervised visitation ( see Matter of Cameron C., 283 A.D.2d 946, 947, 723 N.Y.S.2d 796, lv. denied 97 N.Y.2d 606, 738 N.Y.S.2d 289, 764 N.E.2d 393).
We have reviewed the remaining contentions of the mother and conclude that they are without merit.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the directive suspending respondent's visitation with the child and as modified the order is affirmed without costs and the matter is remitted to Family Court, Ontario County, for further proceedings.