Lupo v. Rainsford, 2017–08734

• Decision Date: 27 June 2018
• Docket Number: V–13970–15/16F, V–13970–15/16E,2017–08734, Docket Nos. V–13970–15/16D
• Citation: 80 N.Y.S.3d 140,162 A.D.3d 1032
• Parties: In the Matter of Farrah LUPO, respondent, v. Brian RAINSFORD, appellant.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1032

80 N.Y.S.3d 140

In the Matter of Farrah LUPO, respondent,

v.Brian RAINSFORD, appellant.

2017–08734

Docket Nos. V–13970–15/16D

V–13970–15/16E

V–13970–15/16F

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 1, 2018

June 27, 2018

Brian Rainsford, Coram, N.Y., appellant pro se.

Laurette D. Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SANDRA L. SGROI, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated July 13, 2017. The order, insofar as appealed from, after a hearing, granted the mother's petition to modify a parental access order dated November 9, 2015, suspended the father's parental access with the subject child, and dismissed the father's violation petitions.

ORDERED that the order dated July 13, 2017, is affirmed insofar as appealed from, without costs or disbursements.

After the parties' divorce in 2013, the father was awarded parental access with the subject child. The parental access provisions of the divorce judgment were modified by order dated November 9, 2015, so as to require that the father's parental access occur in a public place. In March 2016, the mother further petitioned to modify the father's parental access, and the father filed violation petitions seeking to hold the mother in contempt for violation of the parental access order dated November 9, 2015, and a therapeutic parental access order of the same court dated May 31, 2016. After a hearing, the Family Court granted the mother's petition, suspended the father's parental access, and denied the father's petitions.

An existing parental access order may be modified only "upon a showing that there has been a subsequent change of circumstances and modification is required" to ensure the best interests of the child ( Family Ct. Act § 467[b][ii] ; see Matter of Fekete–Markovits v. Markovits, 140 A.D.3d 1061, 1062, 35 N.Y.S.3d 177 ). Further, a noncustodial parent should have reasonable rights of parental access, and the denial of those rights to a biological parent is a drastic remedy which should only be invoked when there is substantial evidence that parental access would be detrimental to the child (see Cervera v. Bressler, 90 A.D.3d 803, 934 N.Y.S.2d 500 ; Matter of Lane v. Lane, 68 A.D.3d 995, 892 N.Y.S.2d 130 ; Matter of Sinnott–Turner v. Kolba, 60 A.D.3d 774, 875 N.Y.S.2d 512 ). The determination of appropriate parental access is entrusted to the sound discretion of the Family Court, and such determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Orellana v. Orellana, 112 A.D.3d 720, 978 N.Y.S.2d 236 ; Matter of Fulmer v. Buxenbaum, 109 A.D.3d 822, 971 N.Y.S.2d 61 ; Matter of Haimovici v. Haimovici, 73 A.D.3d 1058, 899 N.Y.S.2d 898 ).

Here, contrary to the father's contention, the mother met her burden of demonstrating a substantial change of circumstances since the entry of the November 9, 2015, order, including the...