IN RE: ADRIANE M. HECTUS TOWLE (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by dismissing petitioner-respondent's April 17, 2023 violation petition and vacating that part of the order granting petitioner-respondent's modification petition, and as modified the order is affirmed without costs and the matter is remitted to Family Court, Oneida County, for further proceedings in accordance with the following memorandum: In these proceedings pursuant to Family Court Act articles 6 and 8, respondent-petitioner father appeals, in appeal No. 1, from an order that, inter alia, dismissed his petition for modification of a prior custody order concerning the parties’ two children, granted petitioner-respondent mother's petition for modification of the prior custody order, granted the mother's petition for a violation of the prior custody order, and granted the mother's two petitions for violations of a temporary order of protection. In appeal No. 2, the father appeals from an order of protection issued to the mother upon the finding that the father committed an unspecified family offense against her.

Initially, contrary to the mother's assertion with respect to both appeals, inasmuch as the stipulated order that was entered in November 2025—subsequent to the orders on appeal—does not affect the terms of relocation or custody, which “will be directly and immediately impacted by the determination of th[ese] appeal[s],” we conclude that the appeals before us are not moot (Matter of Brandon QQ. v Shelby QQ., 216 AD3d 1212, 1213 [3d Dept 2023] [internal quotation marks omitted]; see Matter of Wayman v Ramos, 88 AD3d 1237, 1239 [3d Dept 2011], lv dismissed 18 NY3d 868 [2012]).

Contrary to the father's contention in appeal No. 1, based on the young age of the children here, we perceive no abuse of discretion in Family Court's denial of his request to conduct a Lincoln hearing (see Matter of Terramiggi v Tarolli, 151 AD3d 1670, 1672 [4th Dept 2017]; Matter of Thillman v Mayer, 85 AD3d 1624, 1625 [4th Dept 2011]). The decision to hold a Lincoln hearing lies within the sound discretion of the court and, “[i]n determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child ‘will on the whole benefit the child by obtaining for the Judge significant pieces of information [they] need[ ] to make the soundest possible decision’ ” (Matter of Walters v Francisco, 63 AD3d 1610, 1611 [4th Dept 2009], quoting Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]).

We agree with the father in appeal No. 1, however, that the court erred in granting the mother's modification petition, i.e., by granting her requests for permission to relocate and for primary physical custody of the subject children, inasmuch as it “failed to make findings regarding [the] relevant factors that must be considered in making such a determination” (Matter of LaPoint v Pelliciotti, 130 AD3d 1453, 1453 [4th Dept 2015] [internal quotation marks omitted]; see Matter of McLaughlin v Michaud, 256 AD2d 1130, 1131 [4th Dept 1998]). Specifically, when assessing a parent's combined request for both primary physical custody and to relocate with children, the court must consider—in addition to the general factors for assessing primary physical custody (see e.g. Matter of Braga v Bell, 151 AD3d 1924, 1925 [4th Dept 2017], lv denied 30 NY3d 905 [2017]; Fox v Fox, 177 AD2d 209, 210 [4th Dept 1992])—“each parent's reasons for seeking or opposing the move, the quality of the relationships between the child[ren] and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child[ren]’s future contact with the noncustodial parent, the degree to which the custodial parent's and child[ren]’s li[ves] may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child[ren] through suitable visitation arrangements” (Matter of Tropea v Tropea, 87 NY2d 727, 740-741 [1996]; see Mason v Mason, 218 AD3d 1226, 1227 [4th Dept 2023]; Matter of Holtz v Weaver, 94 AD3d 1557, 1557 [4th Dept 2012]). We therefore modify the order in appeal No. 1 by vacating that part granting the mother's modification petition and we remit the matter to Family Court for a determination, including specific findings, whether relocation with the mother is in the best interests of the children, following an additional hearing if necessary to consider the factors that the court previously failed to evaluate (see Matter of Eddaoudi v Obtenu, 240 AD3d 1437, 1440 [4th Dept 2025]). Pending the court's determination upon remittal, the relocation and custody provisions in the order appealed from shall remain in effect (see id.).

We reject the father's contentions in appeal No. 1 that the court erred in granting the mother's July 8, 2022 petition alleging a violation of the custody order and her September 12, 2022 petition alleging a violation of a temporary order of protection, but we agree with the father that the court erred in granting the mother's April 17, 2023 petition alleging a violation of that same temporary order of protection.

With respect to the April 17, 2023 violation petition, the mother submitted no evidence beyond her violation petition and, thus, the petition should have been dismissed (see Matter of Schillaci v Forbes, 70 AD3d 1444, 1445 [4th Dept 2010]). We therefore further modify the order in appeal No. 1 accordingly.

With respect to the July 8, 2022 violation petition, the mother established that the parties’ prior custody order directed, inter alia, that “all communication between [the mother] and [the father] shall be in a civil manner,” that the father was aware of the custody order, that the father's text messages were not civil, and that the mother lost parenting time in part as a result of the exchange. Thus, we conclude that the mother met her burden of demonstrating, by clear and convincing evidence, that the father had actual knowledge of and violated a clear and unequivocal mandate of the court (see Matter of Mauro v Costello, 162 AD3d 1475, 1475-1476 [4th Dept 2018]; cf. Matter of Cooley v Roloson, 201 AD3d 1299, 1299 [4th Dept 2022]; see generally Judiciary Law § 753 [A]; Family Ct Act § 156), and that the violation “defeated, impaired, impeded, or prejudiced a right or remedy” of the mother (Mauro, 162 AD3d at 1476 [internal quotation marks omitted]; see Judiciary Law § 753 [A]).

With respect to the September 12, 2022 violation petition, the mother established that the July 8, 2022 temporary order of protection directed, inter alia, that the father was to “[r]efrain from communication or any other contact by ․ e-mail ․ or any other means with [the mother] except about the health, safety, welfare and parenting time of the children,” that the father was aware of the temporary order of protection, and that the father's August 29, 2022 and September 10, 2022 emails to the mother contained demeaning statements that did not deal with the health, safety, welfare and parenting time of the children. Thus, we conclude that the mother met her burden of demonstrating, by clear and convincing evidence, that the father willfully violated the relevant temporary order of protection (see Matter of Schoenl v Schoenl, 136 AD3d 1361, 1362 [4th Dept 2016]).

Finally, we agree with the father in appeal No. 2 that the court erred in determining that he committed a family offense. Initially, we note that the order of protection appealed from in appeal No. 2 has expired, and we therefore ordinarily would dismiss the appeal as moot (see Matter of Kristine Z. v Anthony C., 43 AD3d 1284, 1284-1285 [4th Dept 2007], lv denied 10 NY3d 705 [2008]). However, inasmuch as the father challenges only the court's finding that he committed a family offense and, “ ‘in light of enduring consequences which may potentially flow from an adjudication that a party has committed a family offense,’ ” we conclude that “the appeal from so much of the order ․ as made that adjudication is not academic” (Matter of Hunt v Hunt, 51 AD3d 924, 925 [2d Dept 2008]). We further note that the court failed to specify the particular family offense under Family Court Act § 812 (1) that the father allegedly committed. Nonetheless, remittal is not necessary because the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Langdon v Langdon, 137 AD3d 1580, 1582 [4th Dept 2016]; Matter of Elizabeth X. v Irving Y., 132 AD3d 1100, 1101 [3d Dept 2015]). As petitioner, the mother bore “the burden of proving by a preponderance of the evidence that [the father] committed a family offense” (Matter of Harvey v Harvey, 214 AD3d 1462, 1462 [4th Dept 2023] [internal quotation marks omitted]; see Family Ct Act § 832). Although the mother alleges in the family offense petition—by checking various boxes—that the father committed aggravated harassment in the second degree, assault in the second or third degree, attempted assault, criminal mischief, criminal obstruction of breathing or circulation, disorderly conduct, harassment in the first degree, menacing in the second or third degree, reckless endangerment and stalking, the record is devoid of any evidence of such acts and, thus, those allegations cannot properly be the basis of a family offense violation (see generally Matter of Brennan v Anesi, 283 AD2d 693, 694-695 [3d Dept 2001]). The only remaining allegation is harassment in the second degree, which the mother testified occurred through a series of vulgar and demeaning text messages sent by the father on July 7, 2022.

A person is guilty of harassment in the second degree when, with the intent to harass, annoy or alarm another person, they engage in a course of conduct or repeatedly commit acts that alarm or seriously annoy the other person and serve no legitimate purpose (see Penal Law § 240.26 [3]; Matter of Shephard v Ray, 137 AD3d 1715, 1715-1716 [4th Dept 2016]). Although the father's text messages were not civil, they occurred in the context of an argument that he and the mother were having about when to pick up the subject children and, under these circumstances, we conclude that the mother failed to meet her burden of establishing that the father engaged in a course of conduct with the intent to harass, alarm, or annoy her (see Matter of Alison E.E. v Stephen FF., 245 AD3d 1053, 1054-1055 [3d Dept 2026]; Matter of Christina MM. v George MM., 103 AD3d 935, 936-937 [3d Dept 2014]).

Thus, we reverse the order in appeal No. 2 and dismiss the mother's July 8, 2022 family offense petition.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court