Nelson UU. v. Carmen VV.

2022 NY Slip Op 64996(U)

In the Matter of Nelson UU., Appellant, v. Carmen VV., Respondent.

No. 2022-01218

No. 532635

Supreme Court of New York, Third Department

February 24, 2022

John Ferrara, Monticello, for appellant.

Ivy M Schildkraut, Rock Hill, for respondent.

Jane Bloom, Monticello, attorney for the children.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and Ceresia JJ.

Lynch J.

Appeal from an order of the Family Court of Sullivan County (Meddaugh, J.), entered November 25, 2020, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of two children (born in 2012 and 2017). A February 2019 Family Court order awarded the parties joint legal custody of the children, with physical custody to the mother and a schedule of parenting time to the father. In January 2020, the father filed a modification petition seeking physical custody of the children. He also filed a violation petition alleging, among other things, that the mother had failed to abide by the parenting time schedule. On March 5, 2020, Family Court issued a temporary order directing that "all exchanges of the children shall take place at the [City of] Monticello Police Department."

On or about May 2020, the father filed a petition to enforce the February 2019 and March 2020 orders, annexing thereto several police reports detailing the mother's failure to deliver the children for his parenting time from approximately March 6, 2020 through May 14, 2020 due to her fear of the children contracting COVID-19. A combined fact-finding hearing ensued on the three petitions, during which the mother acknowledged that she was aware of the March 2020 order and had failed to bring the children to the designated meeting spot for the parenting time exchange between mid-March 2020 and mid-May 2020 on account of the stay-at-home directives issued in connection with the COVID-19 pandemic, emphasizing the older child has asthma and she was afraid of the child contracting COVID-19.

While recognizing that the mother acted over genuine concerns for the health of her children, Family Court determined that it was "constrained to find" a willful violation of the underlying orders because she failed to seek judicial intervention. Consequently, the court directed that the mother "adhere to all of the provisions [of] the February 4, 2019 [o]rder" and granted the father 20 days of make-up parenting time between December 2020 and January 2021. The court dismissed the father's January 2020 modification and violation petitions, finding, with respect to the modification petition, that he failed to establish a change in circumstances warranting a best interests review and, with respect to the violation petition, that he "failed to establish a prima facie case" as he "did not prove with any degree of specificity that the mother violated the February 2019 [o]rder prior to March 2020." The father appeals.

The father initially contends that Family Court erred in dismissing his modification petition. ^[1] We disagree. "A party seeking a modification of a prior order of custody must demonstrate that there has been a change in circumstances since entry of the prior order to warrant an analysis as to whether modification thereof would serve the best interests of the children" (Matter of Antonio MM. v Tara NN., 191 A.D.3d 1196, 1197 [2021] [citation omitted]; see Matter of Ramon ZZ. v Amanda YY., 189 A.D.3d 1913, 1914, 1915 [2020]). "Only after this threshold hurdle has been met will the court conduct a best interests analysis" (Matter of Derek KK. v Jennifer KK. 196 A.D.3d 765, 766 [2021]). "Family Court's credibility assessments and factual findings will not be disturbed as long as they have a sound and substantial basis in the record" (Matter of Jessica HH. v Sean HH., 196 A.D.3d 750, 753 [2021] [internal quotation marks and citations omitted]).

Family Court found that, "[b]eyond the established period from mid-March 2020 through mid-May 2020, when the [f]ather was prevented by the [m]other from exercising his parenting time [he] failed to otherwise establish that this was enough of a change in circumstances." To the extent that Family Court relied upon facts that occurred subsequent to the filing of the father's modification petition in concluding that the father failed to demonstrate a change in circumstances, this was error absent a motion to conform the pleadings to the proof (see Matter of Shannon X. v Koni Y., 196 A.D.3d 763, 764 [2021], lv denied 37 N.Y.3d 915 [2021]; Matter of Martin v Mills, 94 A.D.3d 1364, 1367 n [2012]). The relevant time frame in which to assess whether a change in circumstances occurred was the period between entry of the February 2019...