State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 5, 2017 521716 

________________________________

In the Matter of JAMES XX.,

Appellant,

v

TRACEY YY.,

Respondent.

(Proceeding No. 1.)

________________________________ MEMORANDUM AND ORDER

In the Matter of TRACEY YY.,

Respondent,

v

JAMES XX.,

Appellant.

(Proceeding No. 2.)

________________________________

Calendar Date: November 22, 2016

Before: Garry, J.P., Egan Jr., Rose, Clark and Mulvey, JJ.

__________

Susan Patnode, Rural Law Center of New York, Castleton

(Cynthia Feathers of counsel), for appellant.

Thomas B. Wheeler, Potsdam, for respondent.

Rachel A. Rappazzo, Schenectady, attorney for the children.

__________
-2- 521716 

Mulvey, J.

Appeal from an order of the Family Court of St. Lawrence

County (Champagne, J.), entered August 11, 2015, which, among

other things, partially dismissed petitioner's application, in

proceeding No. 1 pursuant to Family Ct Act article 6, to hold

respondent in violation of a prior order of custody.

James XX. (hereinafter the father) and Tracey YY.

(hereinafter the mother) are the parents of two daughters (born

in 1998 and 2000). Based on a stipulation of the parties, Family

Court (Morris, J.), in a modified order dated April 7, 2014, set

forth the parties' agreement providing for joint legal custody of

the children with primary physical custody to the mother and

detailed parenting time to the father. The order also prohibited

the father from contacting the mother for any reason, other than

to notify her of when he and the children had agreed to adjust

the visitation schedule, and it expressly directed the father to

notify the mother by "leav[ing] a message . . . on the telephone

number provided to [him]."

In April 2014, the father filed a violation petition

(proceeding No. 1) alleging that the mother had failed to honor

the visitation schedule and neglected to keep the father informed

about the children's medical care. In March 2015, the mother

filed a family offense petition (proceeding No. 2) accusing the

father of harassment. Family Court (Champagne, J.) found that

the mother had violated the custody order, but had not done so

willfully, and it therefore partially dismissed that petition. 

Family Court also found that the father had committed a family

offense of second degree harassment. The father appeals, and we

affirm. 

The father, as a proponent of a violation petition, was

obligated to show the existence of a lawful court order in effect

with a clear and unequivocal mandate, that the mother had actual

knowledge of the conditions of the order, and that the mother's

"actions or failure to act defeated, impaired, impeded or

prejudiced" the father's rights, and that the alleged violation

was willful (Matter of Prefario v Gladhill, 140 AD3d 1235, 1236

[2016] [internal quotation marks and citations omitted]; see
-3- 521716 

Matter of Eller v Eller, 134 AD3d 1319, 1320 [2015]; Matter of

Constantine v Hopkins, 101 AD3d 1190, 1191 [2012]). The father

testified concerning an incident that occurred on Easter Sunday

2014 when he was unable to exercise his visitation rights. The

record shows that the father arrived at the mother's residence to

pick up the children, but the children refused to go with him. 

The mother did not dispute the father's testimony and claimed

that the children told her that they did not want to see the

father. A witness for the father testified to another instance

of missed visitation during "late summer" of 2014 when the father

was supposed to meet the children for a scheduled visit. When

the children did not arrive at the agreed meeting place, the

witness called the mother, who told her that the children would

not be coming.

A violation of a visitation schedule embodied in a court

order may not be willful if it is due to the child's resistance

to visitation (see Matter of Prefario v Gladhill, 140 AD3d at

1237; Matter of Omahen v Omahen, 64 AD3d 975, 977 [2009]). 

Family Court found that the relationship between the father and

the children was often "toxic and volatile" and that, at times,

there was a total breakdown of the relationship between the

father and the children. The mother's testimony, and the record

of the children's text messages to and from the father, provided

ample evidence that the children often vehemently resisted

visiting the father. In its decision, Family Court found that

the children simply would not attend visitation with the father

unless it was convenient for them (see Matter of Prefario v

Gladhill, 140 AD3d at 1237). Accordingly, Family Court correctly

found that, although there were violations of the modified order,

they were not willful on the part of the mother, but, rather, due

to the children's resistance to visitation, and its credibility

determinations are entitled to deference (see Matter of Prefario

v Gladhill, 140 AD3d at 1237; Matter of Yishak v Ashera, 90 AD3d

1184, 1185 [2011]; Matter of Omahen v Omahen, 64 AD3d at 977;

Matter of Cobane v Cobane, 57 AD3d 1320, 1323 [2008], lv denied

12 NY3d 706 [2009]). 

Another alleged violation concerned whether the mother

failed to notify the father in advance of a dental appointment of

one of the children. The father testified that he learned of
-4- 521716 

this appointment only by chance because he happened to have an

appointment in the same office at the same time. The mother

conceded that she did not notify the father in advance because

she believed that the child had done so directly. Family Court

did not abuse its discretion by determining that the mother's

admitted failure to provide the father with advance notice of a

single dental appointment did not constitute a willful violation,

given her explanation that she believed that the child had

notified the father of such appointment (see Matter of Munson v

Fanning, 84 AD3d 1483, 1484 [2011]; compare Matter of Aurelia v

Aurelia, 56 AD3d 963, 964 [2008]). 

The mother's family offense petition filed by the mother

alleged that the father "constantly" sent text messages to the

mother despite the custody order's prohibition against any

contact with her other than telephone calls regarding the

visitation schedule. The petition further alleged that the

father, among other things, "[s]cream[ed]" at the children and

told them he would take them for visitation by force if they

refused to follow the court-ordered schedule. "A person is

guilty of harassment in the second degree when, with intent to

harass, annoy or alarm another person[,] . . . [h]e or she

engages in a course of conduct or repeatedly commits acts which

alarm or seriously annoy such other person and which serve no

legitimate purpose" (Penal Law § 240.26 [3]; see Matter of

Maureen H. v Bryon I., 140 AD3d 1408, 1410 [2016]).

The record shows that the father sent text messages to the

mother dozens of times although he was prohibited from doing so

by the modified order, and that he continued to do so even after

the mother repeatedly instructed him to stop. The father

acknowledged that the mother had told him to stop. Although many

of these text messages pertained to the visitation schedule,

others threatened the mother. With respect to the father's text

messages to the children, some regarded attempts to arrange

visitation, but others contained profanity and threats, and there

was evidence that showed this behavior also occurred during

telephone calls with the children. The father continued to send

text messages to the children despite being asked to stop. 
-5- 521716 

"[B]adger[ing]" someone through "repeated telephone calls

and text messages" despite numerous requests to stop may amount

to second degree harassment (Matter of Lynn TT. v Joseph O., 129

AD3d 1129, 1130-1131 [2015]; see Matter of Christina Z. v Bishme

AA., 132 AD3d 1102, 1103 [2015]). "Whether a family offense has

been committed is a factual issue to be resolved by Family Court,

and its determinations regarding the credibility of witnesses are

entitled to great weight on appeal" (Matter of Lynn TT. v Joseph

O., 129 AD3d at 1129 [internal quotation marks, brackets,

ellipses and citation omitted]; see Matter of Maureen H. v Bryon

I., 140 AD3d at 1409–1410). Our review of the record supports

Family Court's determination that these text messages "annoyed"

and "alarmed" the mother and the children and that they "served

no legitimate purpose." Family Court's finding of a family

offense is supported by the record before us.

Garry, J.P., Egan Jr., Rose and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court