Tasheanna CC. v. Debron EE.

192 A.D.3d 1359

144 N.Y.S.3d 477

In the Matter of TASHEANNA CC., Respondent,

v.DEBRON EE., Appellant.

(And Two Other Related Proceedings.)

530656

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

Calendar Date: February 9, 2021

Decided and Entered: March 18, 2021

Adam H. Van Buskirk, Auburn, for appellant.

Kathryn Friedman, Buffalo, for respondent.

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

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.

Appeal from an order of the Family Court of Chemung County (Tarantelli, J.), entered November 20, 2019, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.

Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of twin daughters (born in 2008). In December 2018, Family Court, upon consent of the parties, entered a custody and visitation order awarding the father, who resides in Florida, sole legal and physical custody of the children. The mother, who resides in New York, was awarded four to five hours of unsupervised visitation per day, as the parties agree, in either New York or Florida, as well as electronic communication with the children on at least three specified days per week. On February 11, 2019, the mother commenced a custody modification proceeding seeking sole legal and physical custody of the children, alleging that the children have been treated poorly by the father. On February 28, 2019, the mother filed a second petition, seeking enforcement of Family Court's December 2018 custody and visitation order, alleging that the father is interfering with her ability to speak with the children on the telephone. Following an initial appearance on the mother's petitions, on March 25, 2019, the father filed his own modification petition, seeking to have the mother's parenting time and telephone conversations with the children supervised, alleging that the mother has engaged in inappropriate conversations with the children in contravention of Family Court's prior order.

At the fact-finding hearing, the mother modified her request for relief, withdrawing her request for "full custody" of the children and, instead, requesting unsupervised parenting time with the children during the summer, school breaks and alternating holidays and birthdays. Following a fact-finding hearing on all three petitions, Family Court dismissed the mother's enforcement petition, continued the award of sole legal and physical custody to the father and granted the mother's modification petition by providing her with, among other things, unsupervised parenting time in both New York and Florida and ordered the father to transport the children to New York during the children's extended Christmas break and for three weeks during the children's summer vacation. The father appeals.

"A party seeking to modify a prior order of visitation must first demonstrate a change in circumstances since the entry of such order so as to trigger an analysis as to whether modification would serve the best interests of the child" ( Matter of Nicole R. v. Richard S., 184 A.D.3d 978, 979, 126 N.Y.S.3d 219 [2020] [internal quotation marks and citations omitted]; see Matter of Kane FF. v. Jillian EE., 183 A.D.3d 969, 972, 123 N.Y.S.3d 707 [2020] ). Although the inability of the parents to communicate or cooperate effectively for the sake of the children may, under certain circumstances, render a parenting schedule unworkable such that it provides the requisite change in circumstances to trigger the need for Family Court to conduct a best interests analysis (see Matter of Jessica EE. v. Joshua EE., 188 A.D.3d 1479, 1481–1482, 137 N.Y.S.3d 179 [2020] ; Matter of Perry v. LeBlanc, 158 A.D.3d 1025, 1027, 72 N.Y.S.3d 616 [2018] ), no such inability to communicate was demonstrated on the record before us.

The parents consented to a parenting schedule as part of Family Court's December 2018 custody and visitation...