Matter of Harrell v. Fox

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 3, 2016 521047
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In the Matter of STARLITE
HARRELL,
Appellant,
v MEMORANDUM AND ORDER
TRISTON FOX,
Respondent.
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Calendar Date: February 16, 2016
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
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Michelle I. Rosien, Philmont, for appellant.
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Clark, J.
Appeal from an order of the Family Court of Broome County
(Pines, J.), entered April 7, 2015, which, sua sponte, dismissed
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior award of custody.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are, as relevant here, the parents of
three children born between 2003 and 2008. In 2013, the father
petitioned for custody of the children and, following an
evidentiary hearing at which the mother failed to appear, Family
Court awarded the father sole legal and physical custody of the
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children.1 That order, which did not include findings of fact,2
contains no provision for visitation between the mother and the
children and specified that "any contact" between the mother and
the children was "at the [f]ather's sole discretion." The record
does not disclose what the custody arrangement was prior thereto.
The mother, who at some point moved to Colorado, filed a petition
in Broome County in March 2015 seeking sole custody of the
children "back with the mother" and/or visitation with the
children, who she alleged had "always resided with" her. The
mother alleged that, since the entry of the 2013 order, she has
obtained services in Colorado for "parental guidance" and "child
development," she and her husband are attending therapy and
marriage counseling to address their problems including "DV
problems" and her husband is attending mental health therapy and
treatment. She further alleged, among other things, that the
children lacked stable housing and adequate food, they were not
receiving needed medical care or mental health services and had
missed a lot of school, and that the father was "often drunk."
After the petition was filed, Family Court ordered a Family Ct
Act § 1034 investigation, although the results are not in the
record. Family Court thereafter issued an order, apparently sua
sponte and without a hearing, dismissing the mother's petition to
modify custody and/or seeking visitation, finding that she had
failed to allege facts constituting a sufficient change in
circumstances so as to warrant a hearing. The mother now
appeals.3
1
The mother's appeal from the 2013 custody order was
withdrawn.
2
No Family Court fact-finding order is in the record on
appeal, and it is unclear if the required findings of fact were
made (see CPLR 4213 [b]; Matter of McCullough v Harris, 119 AD3d
992, 993 [2014]). Neither the father's 2013 custody petition nor
the hearing transcript are included in the record on appeal.
3
While the mother's notice of appeal was written on a
Family Court motion form, it contains the required information
and an affidavit of service on the father and, accordingly, we
will overlook any defects in the notice of appeal (see CPLR 5520;
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As the party seeking to modify an existing custodial
arrangement, the mother was required to demonstrate, as a
threshold, that "there has been a change in circumstances since
the prior custody order significant enough to warrant a review of
the issue of custody to ensure the continued best interests of
the children" (Matter of Tyrel v Tyrel, 132 AD3d 1026, 1026
[2015] [internal quotation marks and citations omitted]; see
Matter of Gerber v Gerber, 133 AD3d 1133, 1135 [2015]). The
mother's petition, filed pro se, "should be construed liberally
when considering whether she sufficiently alleged a change in
circumstances" (Matter of Ford v Baldi, 123 AD3d 1399, 1400
[2014]; see Matter of Tod ZZ. v Paula ZZ., 113 AD3d 1005, 1006
[2014]; Family Ct Act § 165 [a]; CPLR 3026), and she should be
accorded "the benefit of every favorable inference" (Matter of
Craig O. v Barbara P., 118 AD3d 1068, 1070 [2014]; accord Matter
of Pamela N. v Neil N., 93 AD3d 1107, 1109 [2012]). "While not
every petition in a Family Ct Act article 6 proceeding is
automatically entitled to a hearing, generally an evidentiary
hearing is necessary and should be conducted unless the party
seeking the modification fails to make a sufficient evidentiary
showing to warrant a hearing or no hearing is requested and the
court has sufficient information to undertake a comprehensive
independent review of the [children's] best interests" (Matter of
Schnock v Sexton, 101 AD3d 1437, 1437 [2012] [internal quotation
marks, brackets and citations omitted]).
Upon review of the serious factual allegations raised in
the mother's custody petition regarding the changes in the
welfare of the children since the entry of the prior order, with
regard to inadequate nutrition and health care, housing
instability and possible educational neglect, we find that Family
Court erred in dismissing her petition without conducting a fact-
finding hearing. If established after a hearing, these factual
circumstances "could afford a basis for granting the relief
sought" (Matter of Schnock v Sexton, 101 AD3d at 1438; see Matter
of Freedman v Horike, 107 AD3d 1332, 1333-1334 [2013]; cf. Matter
Matter of Fifield v Whiting, 118 AD3d 1072, 1073 [2014]).
Although notified of his right to do so, the father has not
submitted a brief on this appeal.
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of Lowe v Bonelli, 129 AD3d 1135, 1136-1137 [2015]).
With regard to the mother's request for visitation, there
is a "presumption that visitation with the noncustodial parent is
in the chil[ren]'s best interests" (Matter of Angela F. v Gail
WW., 113 AD3d 889, 890 [2014]) and, "unless visitation is
inimical to the [children's] welfare, Family Court is required to
structure a schedule which results in frequent and regular access
by the noncustodial parent" (Matter of Taylor v Jackson, 95 AD3d
1604, 1605 [2012]; see Matter of Nicolette I. [Leslie I.], 110
AD3d 1250, 1255 [2013]).4 The record before us contains
virtually no factual background information and, as such, does
not disclose whether the denial of all visitation to the mother
"was based [up]on compelling reasons" or if "visitation would be
detrimental or harmful to the child[ren]'s welfare" (Matter of
Tesla Z. [Denise Z.], 90 AD3d 1193, 1194 [2011], lv denied 18
NY3d 806 [2012]). While we express no opinion on the propriety
of such visitation, we also note that the court should not have
delegated to the father complete authority to determine whether
there should be any visitation between the mother and children
and under what conditions such contact should occur and, upon
remittal, there must be a determination in this regard (see
Matter of Aida B. v Alfredo C., 114 AD3d 1046, 1049 [2014];
Matter of Nicolette I., 110 AD3d at 1255; Matter of Taylor v
Jackson, 95 AD3d at 1605).
Lastly, although Family Court was not required to appoint
an attorney for the children, such appointment "remains the
strongly preferred practice" in matters where, as here, custody
is contested (Matter of Ames v Ames, 97 AD3d 914, 916 [2012], lv
denied 20 NY3d 852 [2012]; accord Matter of Keen v Stephens, 114
AD3d 1029, 1031 [2014]; see Family Ct Act § 249 [2] [a]). In
light of the serious allegations raised by the mother and the
ages of the children, we urge Family Court to appoint an attorney
for the children, with due regard for the results of the Family
Ct Act § 1034 investigation and the parties' recent circumstances
and visitation experience.
4
The record does not disclose what contact, if any, the
mother has had with the children since the 2013 order.
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McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur.
ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Broome County
for further proceedings not inconsistent with this Court's
decision to be held within 14 days of the date of this decision.
ENTER:
Robert D. Mayberger
Clerk of the Court