SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

316 

CAF 10-00836 

PRESENT: SCUDDER, P.J., SMITH, CARNI, AND SCONIERS, JJ.

 

 

IN THE MATTER OF JAMES M. FOX, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

ELAINE H. FOX, RESPONDENT-APPELLANT. 

(APPEAL NO. 2.) 

 

SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-APPELLANT. 

SUSAN GRAY JONES, CANANDAIGUA, FOR PETITIONER-RESPONDENT.

M. KATHLEEN CURRAN, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR SARA F. 

 

Appeal from an order of the Family Court, Ontario County (William

F. Kocher, J.), entered March 22, 2010 in a proceeding pursuant to

Family Court Act article 6. The order granted sole legal and physical

custody of the parties’ child to petitioner and suspended the

visitation of respondent. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by vacating the directive suspending

respondent’s visitation with the child and as modified the order is

affirmed without costs and the matter is remitted to Family Court,

Ontario County, for further proceedings in accordance with the

following Memorandum: In appeal No. 1, respondent mother appeals from

an order granting petitioner father’s motion to dismiss her petition

for modification of the existing custody order with respect to custody

and visitation (consent order) by awarding sole legal and physical

custody of the parties’ child to the father and suspending the

mother’s overnight visitation. In appeal No. 2, the mother appeals

from an order granting the father’s violation petition and the relief

sought in his order to show cause by awarding sole legal and physical

custody of the child to the father and suspending the mother’s

visitation with the child in its entirety. We note at the outset that

the mother’s appeal from the order in appeal No. 1 must be dismissed

inasmuch as that order was superseded by the order in appeal No. 2

(see generally Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d

985). Indeed, Family Court issued the order in appeal No. 2 following

the continuation of the hearing upon which the order in appeal No. 1

was based.

With respect to the order in appeal No. 2, we reject the mother’s

contention that the father failed to establish a change in
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CAF 10-00836 

circumstances since entry of the consent order to warrant

reexamination of the visitation arrangement (see Matter of Black v

Watson, 81 AD3d 1316, 1317, lv dismissed in part and denied in part 17

NY3d 747). The consent order awarded the father sole legal and

physical custody of the child and granted the mother two weeknight

visits and overnight visitation on alternating Saturdays. The father

testified that, since the entry of that order, the mother failed to

comply with court-ordered psychiatric treatment, failed to return the

child from visitation on one occasion, and filed unfounded child abuse

complaints against him. The father further testified that the mother

engaged in alienating behavior such as telling the child that she had

to choose between the parents and that there could be fires at the

father’s house while the child was sleeping. We conclude that such

testimony, which the court found to be credible, was sufficient to

establish the requisite change in circumstances (see Matter of Howden

v Keeler, 85 AD3d 1561, 1561).

We agree with the mother in appeal No. 2, however, that the

court’s suspension of the mother’s visitation with the child lacks a

sound and substantial basis in the record (see Matter of Lydia C., 89

AD3d 1434, 1436). “When making a determination with respect to

visitation, the most important factor is the best interests of the

child” (Matter of Balgley v Cohen, 73 AD3d 1038, 1038), and

“[v]isitation may not be denied solely for reasons unrelated to the

welfare of the child[ ]” (Vasile v Vasile, 116 AD2d 1021, 1021). “In

determining whether visitation between a parent and child should be

suspended, the court is to apply a ‘best interest[s] of the child’

standard. However, it is presumed that parental visitation is in the

best interest[s] of the child in the absence of proof that it will be

harmful” (Matter of Nathaniel T., 97 AD2d 973, 974; see Matter of Mark

C. v Patricia B., 41 AD3d 1317, 1318). Thus, “[t]he denial of

visitation to a noncustodial parent constitutes such a drastic remedy

that it should be ordered only when there are compelling reasons, and

there must be substantial evidence that such visitation is detrimental

to the child[ ]’s welfare” (Vasile, 116 AD2d at 1021; see Matter of

Diedrich v Vandermallie, 90 AD3d 1511; Matter of Frierson v Goldston,

9 AD3d 612, 614).

Here, the record lacks the requisite “substantial evidence” that

visitation with the mother is detrimental to the child’s welfare

(Vasile, 116 AD2d 1021; see Diedrich, 90 AD3d 1511; Frierson, 9 AD3d

at 614). The record is clear, and the court specifically found, that

the child wished to continue to visit the mother (cf. Lydia C., 89

AD3d at 1436; Matter of Jacobs v Chadwick, 67 AD3d 1373). The father

testified that he did not observe any odd behavior when the child

returned from visitation with the mother, and he acknowledged that the

child was generally “happy” to visit her mother. The psychologist

acknowledged that the mother loves the child and that the child is

“functioning well,” and both parents testified that the child is

thriving in school. Indeed, the Attorney for the Child told the court

at the close of the hearing that she “certainly would never want to

recommend that [the child] have no contact with her mother.”

We therefore modify the order in appeal No. 2 by vacating the
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directive suspending any and all periods of visitation between the

mother and the child, and we remit the matter to Family Court to

determine an appropriate visitation schedule, which may include

supervised visitation (see Matter of Cameron C., 283 AD2d 946, 947, lv

denied 97 NY2d 606).

We have reviewed the remaining contentions of the mother and

conclude that they are without merit.

Entered: March 16, 2012 Frances E. Cafarell

Clerk of the Court