Matter of Jennifer WW. v. Mark WW. ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: October 20, 2016 520610
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In the Matter of JENNIFER WW.,
Respondent,
v
MEMORANDUM AND ORDER
MARK WW.,
Appellant.
(And Four Other Related Proceedings.)
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Calendar Date: September 7, 2016
Before: Peters, P.J., McCarthy, Garry, Rose and Mulvey, JJ.
__________
Patrick Perfetti, Cortland, for appellant.
Randolph V. Kruman, Cortland, for respondent.
Elizabeth Aherne, Ithaca, attorney for the children.
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Garry, J.
Appeals (1) from an order of the Family Court of Cortland
County (Campbell, J.), entered February 19, 2015, which, among
other things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody, and (2) from an order of protection issued thereon.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of three children (born
in 2008, 2009 and 2010). The parties shared joint legal custody
pursuant to an October 2013 order by which the children resided
with the mother, and the father had parenting time every other
weekend. In February 2014 and September 2014, the mother filed
custody modification petitions seeking sole legal custody, and,
-2- 520610
in May 2014, she filed a family offense petition. The father
cross-petitioned for sole legal custody and physical placement of
the children, and, thereafter, filed a violation petition
alleging that the mother had failed to comply with the prior
order and an interim 2014 order that had granted him supervised
parenting time. Following a hearing, Family Court awarded sole
legal custody and physical placement of the children to the
mother, with four hours of weekly parenting time for the father
each Sunday, to be increased upon a set schedule and established
conditions. The court found that the mother had violated the
interim order, admonished her to comply with future orders, and
dismissed her family offense petition for failure of proof.
Further finding that the children's best interests were
promoted by minimizing contact between the parties, Family Court
ordered visitation exchanges to take place at a relative's home,
with each party leaving before the other party arrived, and
entered an order of protection directing the father to stay away
from the mother until the youngest child reaches the age of 18.
The father now appeals, solely arguing that Family Court abused
its discretion in issuing the order of protection, which he
contends is unnecessary in view of the safeguards against contact
between the parties built into the parenting time schedule. We
disagree and affirm.
When domestic violence is alleged in custody and visitation
matters, the effect upon the children "is a factor that must be
considered" (Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1102
[2007]; see Domestic Relations Law § 240 [1] [a]). This
evaluation "may include, in appropriate situations, an order of
protection" (Matter of King v King, 23 AD3d 938, 939 [2005];
accord Matter of Daniel v Pylinski, 61 AD3d 1291, 1292 [2009];
see Family Ct Act § 656). Here, although the father contends
that Family Court failed to identify sufficiently specific facts
to support issuing the order of protection, we find the factual
findings in the decision as a whole adequate to permit
intelligent appellate review (see Matter of Shana SS. v Jeremy
TT., 111 AD3d 1090, 1091 [2013], lv denied 22 NY3d 862 [2014]).
-3- 520610
Family Court noted that the parties, who have separated and
reunited several times, have a long and well-documented history
of conflict and domestic violence. The mother testified that
they had been the subjects of between 30 and 40 domestic incident
reports that had resulted in three arrests, as well as numerous
child protective investigations that had led to at least three
"indicated" reports against both parties. The father
acknowledged previous criminal convictions arising from
violations of orders of protection. At the time of the fact-
finding hearing, he was on probation for criminal contempt in the
second degree arising from the violation of a protective order in
the mother's favor, and there was a pending violation proceeding.
The mother was also subject to pending criminal charges arising
from allegations relative to the father. Each parent testified
to multiple incidents of physical violence allegedly perpetrated
by the other. Considering the evidence of longstanding conflict
and violence between the parties, we find no abuse of discretion
in the court's determination that an order of protection
extending until the end of the youngest child's minority was in
the children's best interests (see Matter of Morse v Brown, 298
AD2d 656, 657 [2002]; Matter of Royea v Hutchings, 260 AD2d 678,
680 [1999]; see also Matter of Thomas v Osborne, 51 AD3d 1064,
1068-1069 [2008]).
Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.
ORDERED that the orders are affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court