Badal v. Wilkinson

213 A.D.3d 926

183 N.Y.S.3d 567

In the Matter of Cathyann BADAL, appellant,

v.Bryan WILKINSON, respondent.

2021–09049

Docket No. V–23965–19

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

Argued—January 12, 2023

February 22, 2023

Christian P. Myrill, Jamaica, NY, for appellant.

Carol L. Kahn, New York, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Eva D. Stein and Janet Neustaetter of counsel), attorney for the child.

BETSY BARROS, J.P., REINALDO E. RIVERA, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Lisa Aschkenasy, Ct. Atty. Ref.), dated November 29, 2021. The order, insofar as appealed from, after a hearing, in effect, denied that branch of the mother's petition which was for in-person parental access.

ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for a new hearing and determination thereafter of that branch of the mother's petition which was for in-person parental access, in accordance herewith.

The mother and the father have one child together, born in 2013. When the child was one year and three months old, the mother was arrested. She was detained and subsequently deported to Trinidad and Tobago. In 2019, the mother filed a petition seeking telephone, video, and in-person parental access in Trinidad and Tobago. After a hearing, the Family Court granted those branches of the mother's petition which were for phone and video parental access with the child and, in effect, denied that branch of the petition which was for in-person parental access in Trinidad and Tobago. The mother appeals.

When determining issues of parental access, the most important factor to be considered is the best interests of the child (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Wright v. Stewart, 131 A.D.3d 1256, 16 N.Y.S.3d 860 ). The determination of parental access is entrusted to the sound discretion of the Family Court, and such determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Fekete–Markovits v. Markovits, 140 A.D.3d 1061, 1062, 35 N.Y.S.3d 177 ). Generally, a noncustodial parent should have reasonable rights of parental access, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that parental access would be detrimental to the child (see Matter of Lupo v. Rainsford, 162 A.D.3d 1032, 1033, 80 N.Y.S.3d 140 ).

The Family Court's determination, in effect, denying that branch of the mother's petition which was for in-person parental access lacked a sound and substantial basis in the record. "The decision to conduct an in camera interview to determine the best interests of the child is within the discretion of the hearing court" ( Matter of Arroyo v. Agosta, 112 A.D.3d 920, 921, 977 N.Y.S.2d 753 ). Here, the court improvidently exercised its discretion in failing to conduct an in camera interview of the child, particularly given the mother's testimony that the child's fear of visiting her in person was due to outside influence (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 ; cf. Matter of Wright v. Perry, 169 A.D.3d 910, 912, 95 N.Y.S.3d 108 ). The child is of such an age and maturity that his preferences are necessary to create a sufficient record to determine his best...