IN RE: MARCELLO OO. (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Broome County (Adam Schumacher, J.), entered March 31, 2025, which dismissed petitioner's applications, in five proceedings pursuant to Family Ct Act article 6, to hold respondent in violation of a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of the subject children (born in 2014 and 2015) and have an extensive history of litigation concerning custody and visitation.  Relevant to this appeal, the mother was awarded sole legal custody and primary physical placement of the children pursuant to a June 2022 consent order, with the father afforded supervised visitation as could be arranged through an agreed-upon third-party supervisor or at the local visitation center.  Following further proceedings, Family Court entered an order in May 2024 modifying and clarifying the June 2022 order, continuing the mother's sole custody and primary physical placement while providing the father with three hours of supervised visitation once per week, to be monitored by any agreed-upon suitable adult or as provided by the mother in the absence of agreement.  The father was also granted biweekly monitored electronic and/or telephone contact and permission to attend the children's extracurricular/sporting activities, subject to specified conditions, with the mother directed to provide the father appropriate notice thereof.  Between April and July 2024, the father commenced numerous violation proceedings alleging that the mother had interfered with his parenting time, telephone contact and access to information regarding the children's activities.  Following a consolidated fact-finding hearing at which the father testified and the mother did not, Family Court dismissed the father's petitions upon finding that he had failed to establish, by clear and convincing evidence, any violation of the relevant orders.  The father appeals.¹

To sustain a finding of civil contempt arising from the violation of a custody or visitation order, the petitioner bears the burden of establishing “by clear and convincing evidence that there was a lawful court order in effect that clearly expressed an unequivocal mandate, that the person who allegedly violated the order had actual knowledge of its terms, and that his or her actions or failure to act defeated, impaired, impeded or prejudiced a right of the moving party” (Matter of Angelica CC. v. Ronald DD., 233 AD3d 1280, 1281 [3d Dept 2024] [internal quotation marks and citations omitted];  see Judiciary Law § 753[A];  Family Ct Act § 156;  El–Dehdan v. El–Dehdan, 26 NY3d 19, 34–35 [2015] ).  Family Court's factual findings and credibility determinations are entitled to due deference, and this Court will generally not disturb a contempt determination absent an abuse of discretion (see Keller v. Keller, 246 AD3d 1255, 1257 [3d Dept 2026];  Matter of Samantha E. v. Nicholas F., 233 AD3d 1295, 1299 [3d Dept 2024] ).

The father's testimony failed to substantiate his allegations that the mother interfered with his supervised parenting time and telephone contact with any specificity or demonstrate that the mother's conduct was the cause of any disruption.  As to parenting time, the father acknowledged that visits had occurred on multiple occasions and confirmed that the mother never rejected supervisors proposed by him, and he further admitted that he had voluntarily ceased utilizing at least one supervisor with whom visits had been successful.  As to telephone contact, although the father testified that he received only approximately half of the scheduled calls, he was unable to identify dates on which calls were missed, nor did he establish that any missed communication resulted from the mother's intentional conduct.  Finally, although the father claimed that the mother failed to notify him of the children's extracurricular activities, he acknowledged that he attended the pertinent events, having obtained scheduling information through various available means.  According deference to Family Court's credibility determinations, we conclude that the court providently exercised its discretion in finding that the father failed to establish, by clear and convincing evidence, that the mother's conduct defeated, impaired, impeded or prejudiced his rights (see Judiciary Law § 753[A] ).

The father's remaining contentions, to the extent not expressly addressed herein, have been evaluated and determined to be without merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The attorney for the children supports the mother in seeking affirmance.

Garry, P.J.

Fisher, Powers, Corcoran and Ryba, JJ., concur.