Angelica CC. v. Ronald DD.

220 A.D.3d 1064

197 N.Y.S.3d 743

In the Matter of ANGELICA CC., Respondent,

v.RONALD DD., Appellant.

(And Two Other Related Proceedings.)

533921

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

Calendar Date: September 6, 2023

Decided and Entered: October 19, 2023

Theresa M. Suozzi, Saratoga Springs, for appellant.

Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer Powers Rutkey of counsel), for respondent.

Veronica Reed, Schenectady, attorney for the child.

Before: Clark, J.P., Aarons, Reynolds Fitzgerald, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the Family Court of Schenectady County (Jill S. Polk, J.), entered June 25, 2021, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to hold respondent in willful violation of a prior order of custody.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a child (born in 2016). The underlying facts of this case are familiar to this Court, as we previously affirmed orders granting the mother's prior violation petitions and awarding her counsel fees ( 214 A.D.3d 1091, 184 N.Y.S.3d 483 [3d Dept. 2023], lv denied 39 N.Y.3d 915, 2023 WL 3960593 [2023] ). As relevant here, the parties entered into an order of custody on consent in March 2017 (hereinafter the 2017 order), granting them joint legal and shared physical custody of the child with a schedule specifying times for exchanges. In mid-March 2020, as a result of the COVID–19 pandemic,¹ the parties agreed to modify this schedule to allow the father to care for the child every weekday morning, thereby removing the need for the child to attend daycare and potentially be exposed to COVID–19. Thereafter, the father became increasingly concerned about COVID–19 and accused the mother of failing to take adequate safety precautions for the child. As a result, exchanges became increasingly strained and the mother sought to return to the original visitation schedule; the father refused and informed the mother that he was keeping the child indefinitely.

Consequently, the mother filed a petition seeking to enforce the 2017 order requiring the father to turn the child over to her as scheduled, and the father filed a modification petition seeking to be awarded sole legal custody of the child due to the mother's purported inability to care for the child in light of the danger posed by COVID–19.

Following an emergency hearing on both petitions, Family Court issued a temporary order (hereinafter the April 2020 order) which, among other things, reduced the father's visitation to one daily phone call for five minutes in length, and forbid him from disparaging the mother or from speaking to the child about a number of issues related to visitation, custody and COVID–19. Pursuant to an order on consent entered in September 2020 (hereinafter the September 2020 order), the parties agreed to amend the April 2020 order to allow the father two hours of visitation per week, supervised by the mother.

In February 2021, as the result of the father's continued conduct, the mother filed a petition seeking to hold the father in contempt of the 2017 order and the April 2020 order. Following a fact-finding hearing, Family Court found the father in contempt of both orders, as he failed to return the child at an exchange and made multiple statements prohibited by the April 2020 order on several occasions during telephone calls and his supervised visitation. The court also found that a change in circumstances had occurred and that it was in the child's best interests for the mother to retain sole legal and primary physical custody of the child, and for the father's visitation to be limited to an hour of visitation supervised by a psychologist. The father appeals.

We affirm. In order to prevail on a violation petition, 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, that the alleged violator's actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" ( Matter of Carl KK. v. Michelle JJ., 175 A.D.3d 1627, 1628, 110 N.Y.S.3d 66 [3d Dept. 2019] ; accord Matter of Timothy RR. v. Peggy SS., 206 A.D.3d 1123, 1124, 170 N.Y.S.3d 256 [3d Dept. 2022] ). Here, the father admitted that he violated both orders, which he had previously read and understood. As to the 2017 order, the record demonstrates that the father refused to bring the child to a scheduled exchange, even telling the mother to file an emergency petition, and that he continued to refuse until law enforcement became involved. Such conduct impaired the mother's rights, as she lost two days of scheduled time with the child. Although the father framed his refusal to return the child to the mother under the guise of protecting the child from COVID–19, the record indicates that the mother had already agreed that she would not return the child to daycare, which was the basis of the father's concern, therefore removing his rationale for withholding the child from the mother (compare Matter of Jennie BB. v. Anne CC., 210 A.D.3d 1337, 1338, 179 N.Y.S.3d 375 [3d Dept. 2022] ; Matter of Nelson UU. v. Carmen VV., 202 A.D.3d 1414, 1416, 164 N.Y.S.3d 285 [3d Dept. 2022] ). Relating to the April 2020 order, the record reveals that the father repeatedly engaged in conduct prohibited by the order for approximately 11 months – including during a recorded video call when he made numerous prohibited statements to the child and engaged in several prohibited acts in front of the child while the mother repeatedly asked him to stop. The record further demonstrates that the father's conduct had a clear effect on the child, causing the child to become upset and cry on several occasions; furthermore, the father admitted that his conduct was not appropriate, was wrong and that it was prohibited by the order but he continued to do it.² To this end, the attorney for the child contends that the father's conduct amounts to clear and convincing evidence in the record to support the court's finding of contempt. Upon our review, where we defer to Family Court's credibility assessments and factual findings, we find that the court did not abuse its discretion in finding that the father violated the 2017 order and the April 2020 order and that such violations were willful (see Matter of Timothy RR. v. Peggy SS., 206 A.D.3d at 1125–1126, 170 N.Y.S.3d 256 ; see also Matter of Angelica CC. v. Ronald DD., 214 A.D.3d at 1093, 184 N.Y.S.3d 483 ).

Next, we turn to Family Court's determination modifying the custody arrangement and limiting the father's visitation to be supervised by a psychologist. In light of our determination on the violation petition and from our review of the record – which reveals the father's increasingly hostile demeanor toward the mother, repeated messages and accusations against her, as well as his unwelcomed romantic advances and threats to call the police to conduct a wellness check on her – the requisite change in circumstances had occurred since the prior orders were entered warranting an inquiry into the best interests of the child (see Matter of Derek KK. v. Jennifer KK., 196 A.D.3d 765, 767, 151 N.Y.S.3d 491 [3d Dept. 2021] ; see also Matter of Angelica CC. v. Ronald DD., 214 A.D.3d at 1093–1094, 184 N.Y.S.3d 483 ). Turning to this inquiry, the best interests of the child are presumed to lie in a healthy relationship with the noncustodial parent (see Matter of Michael NN. v. Robert OO., 210 A.D.3d 1326, 1327, 179 N.Y.S.3d 411 [3d Dept. 2022], lv denied 39 N.Y.3d 910, 2023 WL 3011648 [2023] ), and such "presumption may be overcome only 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 William V. v. Christine W., 206 A.D.3d 1478, 1481, 170 N.Y.S.3d 385 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Brandon HH. v. Megan GG., 214 A.D.3d 1036, 1037, 184 N.Y.S.3d 462 [3d Dept. 2023] ). The relevant factors in a best interests analysis include "the quality of the parents’ respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being" ( Matter of Joshua PP. v. Danielle PP., 205 A.D.3d 1153, 1155, 169 N.Y.S.3d 188 [3d Dept. 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 901, 2022 WL 11450041 [2022] ). "The court's ultimate assessment of the child's best interests is to be accorded great deference so long as it is supported by a sound and substantial basis in the record" ( Matter of David VV. v. Alison YY., 203 A.D.3d 1534, 1535, 165 N.Y.S.3d 627 [3d Dept. 2022] [citation omitted], lv denied 38 N.Y.3d 908, 2022 WL 2126222 [2022] ; see Matter of Derek KK. v. Jennifer KK., 196 A.D.3d at 767, 151 N.Y.S.3d 491 ).

Here, Family Court's order awarding the mother sole legal and primary physical custody of the child, with supervised visitation to the father,...