IN RE: ANDREW II. (2026)

MEMORANDUM AND ORDER

Calendar Date:  September 8, 2026

Appeal from an order of the Family Court of Schenectady County (Margaret Tabak, Referee), entered March 24, 2025, which partially dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of the subject child (born in 2017).  Pursuant to an order entered upon consent in 2022, the parties were granted joint legal custody of the child, with the mother having primary physical custody and the father having, as is relevant here, parenting time for six hours each day on alternate weekends and additional time as mutually agreed by the parties.  The order also required the father to notify the mother and obtain her consent in writing before traveling with the child beyond Albany, Schenectady and Montgomery Counties.

The father commenced this custody modification proceeding in 2023, seeking overnight visits with the child and elimination of the travel restriction.  The matter proceeded to a fact-finding hearing and a Lincoln hearing, after which Family Court determined that a change in circumstances had occurred and that a modification of the custodial arrangement would serve the best interests of the child, but declined to grant the specific relief requested by the father.  The court instead granted the father seven hours of parenting time on the first and third weekends of the month and required him to notify the mother which weekend day he intended to use for that parenting time.  The order contemplated that he would be granted one overnight weekend visit each month if he consistently utilized that parenting time for two months;  if he did so for an additional two months, he would be granted one overnight for each weekend visit.  Family Court also continued the travel restriction.  The father appeals.

We affirm.  As the parties do not dispute that the father's new job and loss of his ability to legally drive constituted a change in circumstances after the issuance of the 2022 “order, the only issue before [this Court] is whether the child's best interests were served by Family Court's order” modifying the father's parenting time and imposing a graduated schedule that would lead to overnight visits if he complied with it (Matter of Daniel XX. v. Heather WW., 180 AD3d 1166, 1166 [3d Dept 2020];  see Matter of Natalie F. v. Nicholas G., 246 AD3d 1275, 1276–1277 [3d Dept 2026] ).¹  In making that assessment, we note that “Family Court is afforded broad discretion in fashioning an appropriate visitation schedule that promotes the child's best interests, and we will not disturb its determination unless it lacks a sound and substantial basis in the record” (Matter of Perry v. Leblanc, 158 AD3d 1025, 1026 [3d Dept 2018] [citations omitted];  see Matter of Natalie F. v. Nicholas G., 246 AD3d at 1277).

Deferring to the assessment of Family Court that the mother and the father were both credible in their testimony (see Matter of Alexander I. v. Allison I., 246 AD3d 1230, 1231 [3d Dept 2026] ), the hearing evidence reflected that the father was inconsistent in seeing the child, often missing parenting time due to his shifting work schedule and transportation difficulties caused by his inability to drive and his decision to live in Montgomery County when the child and his workplace were elsewhere.  The mother explained that lack of regular contact with the father left the child uneasy with the idea of overnight visits, prompting the child to decline them even when the mother had agreed to an overnight visit.  The mother further testified that she did not believe that the father was ready to take the child outside of the immediate area because of the child's discomfort with the idea of such a trip and the father's doubtful ability to properly plan for and execute one.  Her concern is justified by the record, most notably an incident in which the father took the child and her half sister to see a professional wrestling match in the City of Albany that was of questionable suitability for the child to begin with, that involved side trips the father had failed to disclose to the mother, and that ended with the father having “to find a way home” for himself and the child because he had not ensured proper transportation.  The foregoing constitutes a sound and substantial basis in the record for the determination of Family Court that the geographic limits on the father's parenting time remained appropriate and that he must demonstrate consistency and reliability in visitation – heretofore lacking – before receiving expanded parenting time.  We note that the new requirement that the parties meet at a mutually agreed-upon location midway between their residences for custodial exchanges should facilitate such consistency and we are therefore satisfied that Family Court did not abuse its “wide discretion in fashioning an appropriate visitation schedule in the best interests of the child[ ]” (Matter of Marcia ZZ. v. April A., 151 AD3d 1303, 1306 [3d Dept 2017];  see Matter of Kyle I. v. Kandice K., 232 AD3d 1074, 1076 [3d Dept 2024];  Matter of Finkle v. Scholl, 140 AD3d 1290, 1292 [3d Dept 2016] ).

To the extent that they are not addressed by the foregoing, the father's remaining contentions have been examined and are meritless.

Pritzker, J.P., Ceresia, Powers and Ryba, JJ., concur.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The father complains that he did not ask for a graduated path to overnight visits, but he explicitly sought overnight visits in his modification petition and the parties presented evidence relevant to that issue.  Under those circumstances, Family Court was free to fashion a remedy that could lead to those visits (see e.g. Matter of Chromczak v. Salek, 173 AD3d 1750, 1752 [4th Dept 2019] ).

Corcoran, J.