IN RE: Marcello OO. (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Broome County (Adam Schumacher, J.), entered July 8, 2025, which, among other things, granted petitioner's application, in proceeding No. 6 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Marcello OO. (hereinafter the father) and Jayne PP. (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.  For the purpose of this appeal, the operative order was entered in May 2024, pursuant to which the mother was awarded sole legal custody and primary physical placement of the children, with the father afforded three hours of supervised parenting time per week, monitored telephone contact, and the ability to attend the children's extracurricular activities subject to various conditions aimed at restraining his behavior.  Shortly after entry of that order, the father commenced multiple proceedings alleging violations by the mother.  The father also filed petitions seeking modification of custody and visitation and alleging a family offense.  In response, the mother filed a petition seeking modification of the operative order, alleging that the father involved the children in the parties' litigation, disparaged her to the children and engaged in other specific conduct causing the children emotional harm.  She also filed an order to show cause seeking immediate suspension of the father's contact with the children on the same basis – relief supported by the attorney for the children.  Following a combined fact-finding hearing, as well as a Lincoln hearing with each child, Family Court dismissed the father's petitions and granted the mother's, suspending the father's contact with the children and directing, among other things, that the father complete parenting classes, undergo substance abuse and mental health evaluations, comply with any treatment recommendations and execute any releases necessary so that the court, the parties, their counsel and the attorney for the children may review the resultant reports/evaluations/compliance.  The father appeals.

We first reject the father's challenge to the suspension of his contact with the children.  As there is no dispute that a change in circumstances has occurred since entry of the order sought to be modified, the question distills to what custodial arrangement is in the best interests of the children (see Matter of Todd EE. v. Elina FF., 248 AD3d 1457, 1458 [3d Dept 2026];  Matter of Gabrielle Q. v James R., 233 AD3d 1407, 1408 [3d Dept 2024] ).  Although parenting time with a noncustodial parent is presumed to be in a child's best interests (see Matter of Granger v. Misercola, 21 NY3d 86, 90–91 [2013] ), that “presumption may be rebutted where a preponderance of the evidence demonstrates that visitation would be harmful to the children's welfare or contrary to their best interests” (Matter of William Z. v. Kimberly Z., 212 AD3d 1036, 1038–1039 [3d Dept 2023];  see Matter of Ajmal I. v. LaToya J., 209 AD3d 1161, 1162–1163 [3d Dept 2022] ).  Given the superior position of Family Court to observe and evaluate the witnesses' testimony, its factual findings and credibility assessments are generally accorded great deference, and the court's custodial determination will not disturbed if supported by a sound and substantial basis in the record (see Matter of Robert D. v. Sarah E., 238 AD3d 1222, 1223 [3d Dept 2025], lv denied 44 NY3d 909 [2026];  Matter of Chad KK. v. Jennifer LL., 219 AD3d 1581, 1583 [3d Dept 2023] ).

The hearing evidence established a persistent pattern of the father involving the children in the parties' ongoing conflict, disparaging the mother in their presence with vulgar and degrading language, questioning the children regarding court proceedings, making threats concerning the children's stepfather, and encouraging the children to distrust the adults caring for them.  The evidence further reflected that the father had initiated more than 60 Child Protective Services reports and welfare checks against the mother, all of which were ultimately unsubstantiated.  He continues to attribute the deterioration of his relationship with the children entirely to the mother's alleged alienation, despite offering no specific evidence supporting these repeated claims.  He has also repeatedly denied responsibility for his own conduct and the consequences of his apparent inability to restrain his persistent anger and contempt for the mother.  This is notably illustrated by his prior conviction of criminal contempt in the first degree arising from his violation of an order of protection in favor of the mother.  Family Court also credited the evidence demonstrating that the father's conduct caused the children significant emotional distress and that he failed to appreciate same, despite years of litigation and increasingly restrictive visitation arrangements.  Although no mental health professional testified to as much at the hearing, expert testimony is not a prerequisite to suspending parenting time where, as here, the evidence otherwise provides a sufficient basis for concluding that continued contact would be detrimental to the children's welfare (see Matter of Gabrielle Q. v. James R., 233 AD3d at 1410).  It bears noting that supervision had already been attempted for an extended period yet proved ineffective in preventing the father's inappropriate conduct toward, or in the presence of, the children.  Given the nature of the father's conduct and the history of the subject issues, we cannot conclude that the suspension of the father's contact with the children lacked a sound and substantial basis in the record.

The father further challenges the provisions directing him to complete parenting classes, undergo substance abuse and mental health evaluations, comply with any recommended treatment and execute releases permitting disclosure of the resulting evaluations and recommendations.  Initially, the provisions relative to mental health treatment have been rendered moot by a subsequent stipulation provided to this Court, approved by Family Court on March 31, 2026, deleting this direction.  We reject any argument that the remaining provisions impermissibly bar access to judicial relief or establish an impermissible prerequisite to custody or parenting time.  Instead, the order can be read to hold that completion of these steps will be deemed a change in circumstances that would warrant reconsideration of parenting time (see Matter of Cory O. v. Katie P., 162 AD3d 1136, 1139 [3d Dept 2018];  Matter of Allen v. Boswell, 149 AD3d 1528, 1529–1530 [4th Dept 2017], lv denied 30 NY3d 902 [2017];  Zafran v. Zafran, 28 AD3d 753, 757 [2d Dept 2006];  compare Matter of Benson v. Smith, 178 AD3d 1430, 1432 [4th Dept 2019];  Matter of Avdic v. Avdic, 125 AD3d 1534, 1535 [4th Dept 2015];  Matter of Dennison v. Short, 229 A.D.2d 676, 677 [3d Dept 1996] ).  As made clear by the subsequent stipulation, nothing prevents the father from supporting a modification petition with a showing of other relevant changed circumstances (see Matter of Allen v. Boswell, 149 AD3d at 1530;  Matter of Leonard v. Pasternack–Walton, 80 AD3d 1081, 1082 [3d Dept 2011] ).

There was also an ample evidentiary basis to direct the father to participate in said programs, evaluations and treatment, including his repeated criminal behavior, his extreme amount of unsubstantiated complaints against the mother and his escalating hostility notwithstanding some engagement with mental health treatment.  In fashioning an order designed to protect the children's best interests, while setting forth a path toward potential resumption of contact, Family Court acted within its broad authority to impose reasonable conditions directed toward the children's welfare, which the credited proof established had been harmed by the father's inability to control his behavior or appreciate its impact (see Family Ct Act § 251[a] ).

The father's remaining arguments – including his challenge to Family Court's authority to require him to execute releases with respect to the subject programs/evaluations/recommendations, as opposed to the entirety of his psychiatric records – have been examined and found to be without merit.¹

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   We also take judicial notice of Family Court's November 14, 2025 protective order, issued upon receipt of the father's mental health records.

Garry, P.J.

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