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IN RE: a Custody Proceeding Under Article 6 of the Family Court Act (2023)

Family Court, New York,

IN RE: a Custody Proceeding Under Article 6 of the Family Court Act, R.M., Petitioner, v. S.C., Respondent.

Docket No.: XXXX

Decided: March 06, 2023

Mother represented by Attorney Kelly A. Damm Father represented by Attorney Stephen Davey Child represented by Attorney Susan McNeil

Petitioner R.M. (hereinafter “the father”) and Respondent S.C. (hereinafter “the mother”) are the parents of the subject child L.M. (date of birth: 08/XX/10) (hereinafter “the child”). This is a proceeding pursuant to Family Court Act Article 6. This action commenced with the father's filing of modification and violation petitions on November 8, 2021.

A Fact-Finding Hearing commenced on September 9, 2022. The mother was represented by Attorney Kelly A. Damm, the father was represented by Attorney Stephen Davey, and the child was represented by Attorney Susan McNeil. The Court heard testimony from the father [and various other friend and family member witnesses]. Petitioner's Exhibits 1, 2, and 3 were received into evidence. At the conclusion of the Petitioner's case-in-chief on September 9, 2022, the Respondent moved for a trial order of dismissal. The Court reserved and reviewed the written submissions of counsel. By Decision and Order entered November 21, 2022, the Court dismissed the violation petition, denied the motion to dismiss the modification petition in its discretion, and granted leave to the mother and the Attorney for the Child to file counter- and cross- petitions for modification.

On December 2, 2022, the mother filed a counter-petition for modification of visitation. On December 16, 2022, the Fact-Finding Hearing recommenced, and the Court heard testimony from the mother before the parties rested. On December 21, 2022, the Court conducted a Lincoln Hearing with the child and the Attorney for the Child. The Court reviewed the final written submissions of the mother's counsel dated January 13, 2023, the father's counsel dated January 27, 2023, and the Attorney for the Child dated February 17, 2023.

The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and notified the parties and the attorneys of the results of these searches.


The Court found the father's testimony to be vague, inaccurate, and lacking in credibility. The Court found the mother to be wholly credible. The Court makes the following findings of fact:

On June 11, 2013, the father filed a petition to modify a prior order of custody and visitation by Order to Show Cause. On January 30, 2014, the mother filed an answer and counter-petition for modification. A court appearance was scheduled for February 6, 2014, at which the father failed to appear. On February 19, 2014, a Default Order was entered granting the mother sole legal custody and physical placement of the child and granting the father public place visits on dates and times as agreed upon by the parties.

The father could not provide an explanation for why he failed to appear in court on February 6, 2014. He acknowledged that he was represented by counsel at that time. He did not appeal the Default Order, nor did he file a petition to enforce or modify the 2014 Default Order until he filed the instant petition more than seven years later on November 8, 2021.

In 2014 and possibly 2015, the father had three to five visits with the child at the Sciencenter, Stewart Park, and Cass Park in Ithaca. The visits went well when they occurred, however the father failed to appear for at least five scheduled visits. The child would be very upset when this happened; he would cry and have temper tantrums.

On August XX, 2015, the father attended the child's fifth birthday party at the mother's home. It is undisputed that this was the very last time the father saw or had any contact with the child. After the party, the child asked about his father for a time, however as time passed and the child did not see or have any contact with his father, the child slowly stopped mentioning him at all.

The father himself testified that he had no contact with the child—nor did he even attempt to make any contact with the child—for all of 2016, 2017, and 2018. He acknowledged that his own inaction was to blame, citing his lack of steady employment and housing. The father does not claim that the mother frustrated his efforts during this time period; he simply did not make any at all.

The father asserts that from 2019 until present, he attempted to contact the child by making telephone calls and sending text and Facebook messages to the mother. The mother acknowledges that from around 2019 until the filing of the father's modification petition, she received sporadic messages from the father on Facebook seeking visitation with the child. Due to seeing the child hurt by the missed visits when he was much younger followed by three years of no attempted contact whatsoever by the father, the mother was not responsive to the father's requests. She would ignore his messages, deny him visitation, or advise him that he should file a petition with the Court if he wished to recommence visitation with the child. The father did not file any petition with the Court until November 8, 2021.

After the filing of the father's modification petition, the father began contacting the mother on her correct telephone number again. Prior to that, the father used the wrong telephone number to contact the mother despite previously having her correct number and using that correct number to arrange visitation in 2014. The father never established that the wrong number ever belonged to the mother or that the mother ever gave him the wrong number.

Further, despite having attended the child's fifth birthday party at the mother's home, at no time thereafter did the father return to the residence, or send letters, cards, or gifts for the child to that address or any other address. The father's efforts to contact the child from 2019 until the filing of his modification petition were at best insubstantial and sporadic.

While the Court cannot reveal the wishes of the child as expressed during the Lincoln Hearing, no testimony in the Lincoln Hearing contradicted the mother's testimony at trial or the relief being sought by the Attorney for the Child.1 The child lives with his mother, his mother's fiancée K.H., and his two half-sisters. K.H. is the father of the child's youngest sister who is an infant. The child has a strong relationship with K.H., and they work on vehicles, fish, and hunt together. K.H. has been the father figure in the child's life since 2018. The child views K.H. as his father and began calling K.H. “dad” on his own. K.H. wishes to adopt the child, and the child desires to be adopted by K.H. The child has no memory of the father and does not wish to visit with him.

Prior to these proceedings, the child had been “doing amazing” in school, earning A's and B's. Then he overheard his mother and K.H. discussing the instant proceedings initiated by the father. His grades suddenly dropped to D's and F's with one C in gym. He also began acting out by refusing to do things and telling teachers, “No.” The child went to his guidance counselor and expressed his wishes to not see his father. The child also felt more at ease once the Attorney for the Child was assigned to him. The child was able to recover from this setback and is now doing well in school again.


First, it should be noted that this is not a proceeding to terminate parental rights under Article 10 of the Family Court Act. This is a proceeding to modify a prior order of visitation pursuant to Article 6 of the Family Court Act. A “party seeking to modify an existing custodial arrangement” must “demonstrate, as a threshold, that ‘there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children’ (Matter of Tyrel v. Tyrel, 132 AD3d 1026, 1026 [2015] [internal quotation marks and citations omitted]; see Matter of Gerber v. Gerber, 133 AD3d 1133, 1135 [2015]).” Matter of Harrell v. Fox, 137 AD3d 1352, 1354 (3rd Dept. 2016). If the petitioner meets that burden, he or she must then demonstrate that the “best interests of the child[ren] would be served by modification of that order (Matter of David ZZ. v. Suzanne A., 152 AD3d 880, 881, 58 N.Y.S.3d 711 [2017] [internal quotation marks and citations omitted]; accord Matter of Heather U. v. Janice V., 160 AD3d 1149, 1150, 74 N.Y.S.3d 410 [2018]).” Beers v. Beers, 163 AD3d 1197, 1198 (3rd Dept. 2018).

The Court finds that, based upon all the facts and circumstances set forth above, the mother met her burden of demonstrating a significant change in circumstances since the 2014 Default Order, specifically that the father has effectively abandoned the child by failing to visit, contact, or communicate with him whatsoever for over six years.

Turning next to whether it would be in the best interests of the child to modify the prior order, “[a]ny court in considering questions of child custody must make every effort to determine ‘what is for the best interest of the child, and what will best promote [his or her] welfare and happiness’ [internal citations omitted].” Eschbach v. Eschbach, 56 NY2d 167, 171 (NY 1982). “In determining the best interests of a child, a court must consider various factors, including ‘the parents’ ability to provide a stable home environment for the child, the child's wishes, the parents’ past performance, relative fitness, ability to guide and provide for the child's overall well-being, and the willingness of each parent to foster a relationship with the other parent’ [internal citations omitted].” Herrera v. Pena-Herrera, 146 AD3d 1034, 1035 (3rd Dept. 2017).

The determination of visitation is within the sound discretion of the hearing court based on the best interests of the [child], and its determination will not be set aside unless it lacks a sound and substantial basis in the record [internal citations omitted]. Furthermore, while the express wishes of the [child] are not controlling, ‘they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful’ [internal citations omitted].” Licato v. Jornet, 146 AD3d 787 (2nd Dept. 2017).

“[S]ince the denial of visitation is a drastic remedy, there must be compelling reasons supporting that decision and ‘substantial evidence showing that such visitation is detrimental to the [child]’ [internal citations omitted].” Robert TT v. Carol UU, 300 AD2d 920 (3rd Dept. 2002). See also Boisvenue v. Gamboa, 166 AD3d 1411, 1412 (3rd Dept. 2018).

Here, there are compelling reasons to deny the father visitation and substantial evidence in the record that visitation with the father would be detrimental to the child. The father effectively abandoned the child by failing to have any contact or visitation with him for over six years before filing his petition. The very last time he saw or had any contact with the child was at the child's fifth birthday party at the mother's home in 2015. The child is now twelve years old. By his own admission, the father failed to make even a single attempt to contact the child for all of 2016, 2017, and 2018. Thereafter, his efforts to contact or have visitation with the child were at best insubstantial and sporadic. The father is a stranger to the child, and the child has no memory of him. The child is closely bonded with his mother's fiancé, views him as his father, calls him “dad,” and wishes to be adopted by him. The mother's credible testimony at trial established that after the child overheard discussions of the pending court proceedings initiated by the father, his grades dropped from A's and B's to mostly D's and F's. The child also began acting out in school and exhibiting defiance towards his teachers. It was only after the Attorney for the Child was assigned to the child, and after the child expressed his wishes to not see his father to his guidance counselor, that the child was able to recover from this setback. This record provides substantial evidence that visitation with his father would be detrimental to the child.

This case is closely akin to Walrad v. Walrad, 63 AD3d 1227, 1228 (3rd Dept. 2009). There, the mother's credible testimony established that after engaging in supervised visitation on no more than four occasions, the father had no relationship or contact with the child for over eight years. The family court “noted the child's understandable reluctance to have any contact with the father after so many years of absence from her life.” Id. The Third Department affirmed the family court's denial of visitation, finding that the father had “effectively abandoned the child for more than eight years and that future visitation of any kind would not be in the child's best interests [internal citations omitted].” Id. The Second Department ruled the same way in a similar case in which the father effectively abandoned the subject children for five years. See Licato, supra, at 788. There, the Court found that the family court's suspension of visitation was supported by a sound and substantial basis in the record and that it was consistent with the best interests of the children. Here, just as in Walrad and Licato, it would not be in the child's best interests—and would in fact be detrimental to him—for the father to have visitation with him in light of the father's effective abandonment of the child for over six years and the resulting lack of any relationship between the two. As such it is hereby:

ORDERED that the father's petition is hereby DENIED; and it is further

ORDERED that the mother's counter-petition is hereby GRANTED IN PART; and it is further

ORDERED that the mother shall have sole legal custody and sole placement of the subject child; and it is further

ORDERED that the father's visitation is suspended.


1.   The AFC Closing Argument filed February 17, 2023, requested that the Court order no contact or visitation between the father and the child.

Scott A. Miller, J.

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IN RE: a Custody Proceeding Under Article 6 of the Family Court Act (2023)

Docket No: Docket No.: XXXX

Decided: March 06, 2023

Court: Family Court, New York,

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