IN RE: Joseph A. FARCO (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from (1) an order of the Family Court, Nassau County (Darlene D. Harris, J.), dated October 24, 2024, and (2) an order of dismissal of the same court also dated October 24, 2024.  The order, insofar as appealed from, prohibited the father from filing any additional petitions relating to custody and parental access without first obtaining prior written permission from the Family Court.  The order of dismissal, insofar as appealed from, without a hearing, dismissed the father's petition to modify a so-ordered stipulation of settlement dated December 22, 2021, so as to award him sole legal and residential custody of the parties' child.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order as prohibited the father from filing any additional petitions relating to custody or parental access without first obtaining prior written permission from the Family Court is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see Family Ct Act § 1112[a]);  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements;  and it is further,

ORDERED that the order of dismissal is reversed insofar as appealed from, on the law, without costs or disbursements, the father's petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for a hearing in accordance herewith and a new determination thereafter of the father's petition.

The parties were divorced by a judgment entered March 5, 2019, which incorporated, but did not merge, a stipulation of settlement of the parties dated May 22, 2018 (hereinafter the 2018 stipulation).  Pursuant to the 2018 stipulation, the parties would share joint legal custody of their child, and the father would have primary residential custody.  In July 2019, the father moved to modify the 2018 stipulation, and the mother cross-moved to modify the 2018 stipulation.  By stipulation of settlement, which was so-ordered on December 22, 2021, the 2018 stipulation was modified (hereinafter the 2021 order).

In September 2024, the father filed the instant petition to modify the 2021 order so as to award him sole legal and residential custody of the child, and the mother filed a cross-petition to modify the 2021 order so as to award her increased parental access and greater decision-making authority.  Thereafter, the father moved to dismiss the mother's cross-petition, to impose sanctions upon the mother, and to prohibit her from filing any additional custody enforcement or modification petitions.  In an order dated October 24, 2024, the Family Court, inter alia, prohibited the father from filing any additional petitions relating to custody or parental access without first obtaining prior written permission from the court.  In an order of dismissal also dated October 24, 2024, the court, among other things, without a hearing, dismissed the father's petition.  The father appeals.

The Family Court improvidently exercised its discretion in prohibiting the father from filing any additional petitions relating to custody or parental access without first obtaining prior written permission from the court.  “While public policy generally mandates free access to the courts” (Matter of Stones v. VanDenberge, 167 A.D.3d 909, 910, 90 N.Y.S.3d 244;  see Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL–CIO, 38 N.Y.2d 397, 404, 380 N.Y.S.2d 635, 343 N.E.2d 278), “a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will” (Matter of Wieser v. Wieser, 83 A.D.3d 950, 950, 920 N.Y.S.2d 719;  see Matter of Unger v. Koren Ha, 234 A.D.3d 783, 785, 224 N.Y.S.3d 561).  Under the circumstances presented here, the father did not abuse the judicial process by filing the petition to modify the 2021 order, as there is no basis in the record to demonstrate that the father filed frivolous motions or petitions or filed motions or petitions out of ill will or spite (see Matter of Genao–Archibald v. Archibald, 208 A.D.3d 1185, 1187, 173 N.Y.S.3d 880;  Matter of Stones v. VanDenberge, 167 A.D.3d at 910, 90 N.Y.S.3d 244;  Matter of Price v. Jenkins, 99 A.D.3d 915, 915, 951 N.Y.S.2d 914).  Furthermore, the father's motion, inter alia, to dismiss the mother's cross-petition did not contradict his petition for modification (see Matter of Stefas v. Sierra, 90 A.D.3d 762, 763–764, 934 N.Y.S.2d 237).

“Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child” (Matter of Burke v. Squires, 202 A.D.3d 784, 785, 162 N.Y.S.3d 434;  see Matter of Fiore v. Gima, 227 A.D.3d 1071, 1073, 213 N.Y.S.3d 109).  “The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances” (Matter of Shepherd v. Mirukaj, 235 A.D.3d 769, 770, 226 N.Y.S.3d 595;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).  “Custody determinations should generally be made only after a full and plenary hearing” (Matter of Liang v. O'Brien, 216 A.D.3d 1101, 1101, 189 N.Y.S.3d 287).  “Before subjecting children and their parents to additional litigation, courts require that, before a full hearing is ordered, the parent seeking a change of custody must make an evidentiary showing of a change in circumstances demonstrating a need to conduct a full hearing into whether a change of custody is appropriate in order to insure the child's best interests” (Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103 N.Y.S.3d 445;  see Matter of Liang v. O'Brien, 216 A.D.3d at 1102, 189 N.Y.S.3d 287).

Here, the Family Court improperly dismissed, without a hearing, the father's petition.  The father's allegations, which were supported by the requisite threshold evidentiary showing, demonstrated factual issues so as to require a hearing on the issue of whether the 2021 order continued to serve the child's best interests (see Matter of Sanna v. Delong, 238 A.D.3d 880, 881, 231 N.Y.S.3d 862;  Matter of McCabe v. Truglio, 214 A.D.3d 811, 812, 183 N.Y.S.3d 757;  Chukwuemeka v. Chukwuemeka, 207 A.D.3d 432, 434, 169 N.Y.S.3d 802).  Among other things, the father sufficiently alleged that since the 2021 order was issued, the mother's mental health had deteriorated such that the parties' existing custody arrangement may no longer be in the child's best interests (see Pettei v. Pettei, 207 A.D.3d 670, 672, 171 N.Y.S.3d 582), and the mother had willingly forfeited scheduled parental access time with the child (see Matter of Jean v. Washington, 71 A.D.3d 1145, 1146, 898 N.Y.S.2d 63).  Because facts material to the best interests analysis and the circumstances surrounding such facts remain in dispute, a hearing is required (see S.L. v. J.R., 27 N.Y.3d 558, 564, , 36 N.Y.S.3d 411, 56 N.E.3d 193;  Matter of Liang v. O'Brien, 216 A.D.3d at 1102, 189 N.Y.S.3d 287).

The mother's remaining contention is without merit.

Accordingly, we reverse the order of dismissal insofar as appealed from, reinstate the father's petition, and remit the matter to the Family Court, Nassau County, for a hearing and a new determination thereafter of the father's petition.

IANNACCI, J.P., FORD, VENTURA and QUIRK, JJ., concur.