Allen v. Boswell

• Decision Date: 28 April 2017
• Citation: 53 N.Y.S.3d 432,149 A.D.3d 1528
• Parties: In the Matter of Anthony ALLEN, Petitioner–Appellant, v. Tamara BOSWELL, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1528

53 N.Y.S.3d 432

In the Matter of Anthony ALLEN, Petitioner–Appellant,

v.Tamara BOSWELL, Respondent–Respondent.

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

April 28, 2017.

Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Petitioner–Appellant.

Tanya J. Conley, Attorney for the Children, Rochester.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order that, inter alia, modified a prior custody and visitation order by directing that he have supervised visitation with the parties' three children and ordering him to attend a parenting class. We reject the father's contention that respondent mother failed to establish a change in circumstances sufficient to warrant an inquiry into the best interests of the children (see generally Matter of McClinton v. Kirkman, 132 A.D.3d 1245, 1245, 18 N.Y.S.3d 485 ). Although Family Court failed to make an express finding that there was a change in circumstances, we have the authority to "review the record to ascertain whether the requisite change in circumstances existed" (Matter of Curry v. Reese, 145 A.D.3d 1475, 1475,44 N.Y.S.3d 279 [internal quotation marks omitted] ). A change in circumstances has been found to exist when an incident of domestic violence occurs in the children's presence (see Matter of Jeremy J.A. v. Carley A., 48 A.D.3d 1035, 1036, 851 N.Y.S.2d 751 ; see also Matter of Schieble v. Swantek, 129 A.D.3d 1656, 1657, 12 N.Y.S.3d 463 ), or when the parties are so unable to communicate without hostility that custody exchanges "resulted in disagreements that required [the] intervention" of others (Matter of Kylene FF. v. Thomas EE., 137 A.D.3d 1488, 1489–1490, 28 N.Y.S.3d 728 ). Here, the mother's undisputed testimony established that, the last time she met the father to exchange the children, he physically assaulted her in the children's presence such that persons in a nearby parking lot had to intervene. We therefore conclude that the mother established the requisite change in circumstances (see generally Curry, 145 A.D.3d at 1475, 44 N.Y.S.3d 279 ).

We reject the father's further contention that the court's determination that supervised visitation was in the best interests of the children lacks a sound and substantial basis in the record (see generally Matter of Procopio v. Procopio, 132 A.D.3d 1243, 1244, 16 N.Y.S.3d 879, lv. denied 26 N.Y.3d 915, 2015 WL 9143671 ; Matter of Creek v. Dietz, 132 A.D.3d 1283, 1284, 16 N.Y.S.3d 888, lv. denied 26 N.Y.3d 914, 2015 WL 9144626 ). The record establishes that the father committed acts of domestic violence against the mother in the children's presence and that he demonstrated poor impulse control during trial. Thus, although there is no evidence in the record that the father physically harmed the children, "the record provides no basis to disturb Family Court's conclusion that limiting [the father] to supervised visitation was in the child[ren]'s best interest[s]" (Matter of Chilbert v. Soler, 77 A.D.3d 1405, 1406, 907 N.Y.S.2d 757, lv. denied 16 N.Y.3d 701, 2011 WL 67515 ; see generally Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 ).

We agree with the father, however, that the court erred to the extent that it ordered that future modification of the father's visitation is conditioned on completion of a parenting class. "[A]lthough a court may include a directive to obtain counseling as a component of a custody or visitation order, the court does not have the authority to order such counseling as a prerequisite to custody or visitation" (Matter of Ordona v. Cothern, 126 A.D.3d...