Michael NN. v. Robert OO.

210 A.D.3d 1326

179 N.Y.S.3d 411

In the Matter of MICHAEL NN., Appellant,

v.ROBERT OO., Respondent.

533255

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

Calendar Date: October 12, 2022

Decided and Entered: November 23, 2022

John A. Cirando, Syracuse, for appellant.

Larisa Obolensky, Delhi, for respondent.

Allen E. Stone Jr., Vestal, attorney for the child.

Before: Lynch, J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the Family Court of Tioga County (Matthew C. Hayden, J.), entered April 14, 2021, which partially dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.

Petitioner (hereinafter the father) is the parent of a child (born in 2005), and respondent (hereinafter the grandfather) is the child's maternal grandfather. Pursuant to an October 2014 order,¹ the grandfather has sole legal and physical custody of the child with the father having visitation as the parties could agree. In 2019, the father commenced a proceeding under Family Ct Act article 6 seeking to modify the order, alleging that the grandfather was denying him the ability to visit with the child and that the grandfather refused to make his phone number available. Following a fact-finding hearing, Family Court partially dismissed the modification petition and, among other things, ordered that any visitation between the father and the child be supervised and on a graduated schedule. The father appeals.

As the parties do not dispute that a change in circumstances has occurred since the entry of the prior custody order, our inquiry focuses on "whether Family Court's decision that the father have supervised visitation with the child served the child's best interests" ( Matter of Christopher WW. v. Avonna XX., 202 A.D.3d 1425, 1426, 164 N.Y.S.3d 278 [3d Dept. 2022] ). "Generally, the best interests of a child lie in having [a] healthy and meaningful relationship[ ] with ... [the] noncustodial parent" ( Matter of Carin R. v. Seth R., 196 A.D.3d 776, 777, 151 N.Y.S.3d 498 [3d Dept. 2021] [citations omitted]). However, Family Court has the discretion to impose supervised visitation if it determines "that unsupervised visitation would be detrimental to the child's safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" ( Matter of Christopher WW. v. Avonna XX., 202 A.D.3d at 1426, 164 N.Y.S.3d 278 [internal quotation marks, brackets and citations omitted]; see Matter of Damon B. v. Amanda C., 195 A.D.3d 1107, 1108, 149 N.Y.S.3d 642 [3d Dept. 2021] ). "Ultimately, Family Court has broad discretion in determining whether supervised visitation is warranted, and its decision will only be disturbed by this Court when it lacks a sound and substantial basis in the record" ( Matter of Michael U. v. Barbara U., 189 A.D.3d 1909, 1911, 138 N.Y.S.3d 279 [3d Dept. 2020] [internal quotation marks and citation omitted]; see Matter of Christopher WW. v. Avonna XX., 202 A.D.3d at 1426, 164 N.Y.S.3d 278 ).

Family Court found, and the record confirms, that the father has only seen the child twice since 2014. In this regard, the father testified that he was incarcerated from 2007 to 2014, during which time he had only limited contact with the child through letters and gifts that he sent, but did not receive any response. He described the two visits that he had with the child when he was released in 2014, both occurring within a few weeks of each other. According to the father, the reason why he did not have any additional visits with the child since 2014 was because his calls were unanswered and the grandfather's phone was disconnected or no longer in service. However, the father acknowledged that he continued to have contact directly with the child. As to some of his more recent communications with the child, the father admitted to having told the child that she could come live with him or her brother if she wished and that she should "speak up in court."

In contrast, the grandfather testified that he has had the same phone number for the last 15 years and owns two businesses with publicly advertised phone numbers. After the two visits in 2014, the grandfather testified there were only two other times that the father called to request a visit; one being when the father was in town for his brother's funeral but the child was away with friends, and the other being during the start of the pandemic but the grandfather denied the request due to COVID–19 concerns. Further, the grandfather testified that, since having contact with the father through the phone and social media, the child has become more defiant and began to request to go live with her brother because he would allegedly let her have a puppy. Relating to unsupervised visits, the grandfather testified he was concerned that the father would "take off with her" and that he...