IN RE: Derrick KNAUSS (2019)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (John M. Hunt, J.), dated May 24, 2018.  The order, without a hearing, granted the mother's petition to modify an order of the same court dated October 26, 2017, so as to limit the father to only supervised parental access, and prohibited the father from filing any further petitions against the mother without permission of the Family Court.

ORDERED that the order dated May 24, 2018, is modified, on the law and the facts, by deleting the provision thereof prohibiting the father from filing any further petitions against the mother without permission of the Family Court;  as so modified, the order is affirmed, without costs or disbursements.

In these related proceedings pursuant to Family Court Act article 6, the father filed a petition for visitation and a petition alleging that the mother violated a parental access order.  In May 2018, the mother filed a petition to modify the parental access order so as to limit the father to only supervised parental access, alleging that he abused alcohol.  In the order appealed from, the Family Court granted the mother's petition without a hearing, and prohibited the father from filing any further petitions against the mother without permission of the court.

“Generally an evidentiary hearing is necessary concerning a modification of visitation” (Matter of Hom v. Zullo, 6 A.D.3d 536, 536, 775 N.Y.S.2d 66).  Here, however, no hearing was necessary because there was no unresolved factual issue to be determined (see Matter of Long v. Donoghue, 167 A.D.3d 614, 89 N.Y.S.3d 235;  Matter of O'Hanlon v. Cornelius, 213 A.D.2d 406, 624 N.Y.S.2d 876;  cf. S.L. v. J.R., 27 N.Y.3d 558, 36 N.Y.S.3d 411, 56 N.E.3d 193).

However, the Family Court should not have prohibited the father from filing any further petitions against the mother without permission of the Family Court.  “Public policy generally mandates free access to the courts.  However, 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 Pignataro v. Davis, 8 A.D.3d 487, 489, 778 N.Y.S.2d 528 [citation omitted] ).  Here, the father did not abuse the judicial process by filing a petition for visitation and a petition alleging a violation of the parental access order (see Matter of Wieser v. Wieser, 83 A.D.3d 950, 950–951, 920 N.Y.S.2d 719).

MASTRO, J.P., CHAMBERS, MILLER and CHRISTOPHER, JJ., concur.