Ajmal I. v. LaToya J.

209 A.D.3d 1161

175 N.Y.S.3d 788

In the Matter of AJMAL I., Petitioner,

v.LATOYA J., Appellant.

534329

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 12, 2022

Decided and Entered: October 20, 2022

Christopher Hammond, Cooperstown, for petitioner.

Lisa K. Miller, McGraw, attorney for the child.

Before: Egan Jr., J.P., Pritzker, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from an order of the Family Court of Broome County (Mark H. Young, J.), entered September 13, 2021, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of a son (born in 2007). The parties' relationship was notable for both verbal and physical violence and, in 2009, they separated. Pursuant to a February 2012 order, the mother was awarded sole legal and physical custody of the child, while the father, who had failed to appear in the underlying proceeding, was granted the right to petition for custody and/or visitation in the future.

The father left New York in 2009 and has not resided in the state since. He has intermittently gotten along with the mother in the ensuing years and has had some contact and visits with the child as a result; nevertheless, the parties' relationship has generally been tense, which was reflected in the derogatory comments each has made about the other on social media. As such, and given the father's prior menacing and assaultive behavior toward the mother, she remained afraid of him and refused to give him her address. In November 2019, approximately four months after the father failed to obtain a promised birthday gift for the child and the mother and the child both cut off contact with him, the mother learned that the father had offered money on social media to anyone who gave him the mother's address, then posted that he had obtained the address and would "[s]ee [her] soon." The mother filed a family offense petition seeking an order of protection against the father. The father responded by filing a custody modification petition and seeking, for the first time since the issuance of the 2012 custody order, visitation with the child.

After conducting a fact-finding hearing regarding the mother's family offense petition, Family Court issued a January 2021 order in which it determined that the father had committed a family offense and issued an order of protection in favor of the mother.¹ Family Court then conducted a fact-finding hearing on the father's modification petition, during which it took judicial notice of the prior proceedings involving the parties, heard testimony from the parties and conducted an in camera interview with the child. Following that hearing, Family Court rendered a decision from the bench in which it determined, among other things, that the best interests of the child lie in continuing the award of sole legal and physical custody to the mother. Family Court did, however, grant the father two hours of supervised visitation with the child so long as he gave the mother at least a week's notice of his plans to travel to New York and exercise that visitation.² The mother appeals from the order implementing the terms of that decision.

Although "[t]he propriety of visitation is left to the sound discretion of Family Court and its findings, guided by the best interests of the child, will not be disturbed unless they lack a sound basis in the record," we agree with the mother and the attorney for the child that there is no such basis for the award of visitation here ( Matter of Moore v. Schill, 44 A.D.3d 1123, 1123, 844 N.Y.S.2d 153 [3d Dept. 2007] ; see Matter of Alan U. v. Mandy V., 146 A.D.3d 1186, 1188, 44 N.Y.S.3d 801 [3d Dept. 2017] ). We therefore reverse and dismiss the father's petition in its entirety.

Visitation with a noncustodial parent is presumed to be in the best interests of the child, but that "presumption may be overcome where the party opposing visitation sets forth compelling reasons and substantial evidence that such visitation would be detrimental or harmful to the child's welfare" ( Matter of Angela H. v. St. Lawrence County Dept. of Social Servs., 180 A.D.3d 1143, 1146, 120 N.Y.S.3d 481 [3d Dept. 2020] [internal quotation marks and citation omitted]; accord Matter of William V. v. Christine W., 206 A.D.3d 1478, 1481, 170 N.Y.S.3d 385 [3d Dept. 2022] ).³ This "standard of substantial proof ‘should not be interpreted in such a way as to heighten the burden, of the party who opposes visitation, to rebut the presumption by a preponderance of the evidence’ " ( Matter of Owens v. Chamorro, 114 A.D.3d 1037, 1039, 981 N.Y.S.2d 163 [3d Dept. 2014] [ellipsis and emphasis omitted], quoting Matter of Granger v. Misercola, 21 N.Y.3d 86, 92, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013] ). As such, the party opposing visitation will meet his or her burden with "sworn testimony or documentary evidence that visitation would be harmful to the child or that the noncustodial parent has forfeited the right of access" ( Matter of Owens v. Chamorro, 114 A.D.3d at 1039, 981 N.Y.S.2d 163 ; see Matter of Newman v. Doolittle, 151 A.D.3d 1233, 1234, 56 N.Y.S.3d 385 [3d Dept. 2017] ).

Turning to the proof, it is undisputed that the father has not lived with the child in over a decade and has only infrequently visited the child due to, among other things, his moving out of the area and frequently relocating around the United States. The father also made no effort to seek a formal award of visitation until 2019, more than seven years after the issuance of the 2012 custody order and over two years after he had last seen the child.

This failure by the father to seek a visitation order or otherwise "avail himself ... of opportunities for visitation over a lengthy period of time is appropriately taken into account in considering whether visitation is appropriate" ( Matter of Owens v. Chamorro, 114 A.D.3d at 1039, 981 N.Y.S.2d 163 ; accord Matter of Newman v. Doolittle, 151 A.D.3d at 1235, 56 N.Y.S.3d 385 ).

Moreover, the mother testified as to how the father...