Jackson v. Wylie-Tunstall

• Decision Date: 16 March 2016
• Citation: 137 A.D.3d 1032,27 N.Y.S.3d 244
• Parties: In the Matter of Vincent JACKSON, appellant, v. Carol WYLIE–TUNSTALL, respondent.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1032

27 N.Y.S.3d 244

In the Matter of Vincent JACKSON, appellant,

v.Carol WYLIE–TUNSTALL, respondent.

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

March 16, 2016.

Salvatore C. Adamo, New York, N.Y., for appellant.

Margaret Schaefler, Hauppauge, N.Y., for respondent.

Kenneth J. Molloy, Central Islip, N.Y., attorney for the child.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

Appeal from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct.Atty.Ref.), dated June 16, 2014. The order, without a hearing, dismissed the father's amended petition for visitation with the subject child.

ORDERED that the order is reversed, on the law, without costs or disbursements, the amended petition is reinstated, and the matter is remitted to the Family Court, Suffolk County, for a hearing on the amended petition in accordance herewith.

The mother and father, who were never married, are the parents of a daughter, born on March 21, 2003. The father has been incarcerated since August 2006. In January 2011, the Family Court issued an order awarding sole custody of the child to the mother upon the father's consent. The order did not address visitation or include a provision regarding visitation. In April 2013, the father filed a petition pursuant to Family Court Act article 6 seeking visitation with the child.

The father's initial petition stated that there had been no prior order regarding visitation. In October 2013, after the parties had appeared for several conferences, the father filed an amended petition, in which he alleged that a change in circumstances had occurred since the issuance of the January 2011 custody order. Specifically, the father alleged that he had a lengthy telephone conversation with the child in August 2013, and the child had expressed a desire to have a relationship with him. The father clarified at further court appearances, which he attended via video conference, that he sought supervised telephone visitation and to communicate with the child by letter. The mother opposed the father's amended petition and requested that the court dismiss the proceeding due to the father's failure to adequately plead a change in circumstances. After meeting with the child, the attorney for the child joined in the mother's application to dismiss the father's amended petition, asserting that the child said she did not want a relationship with the father. Without holding a hearing, the Family Court found that the father failed to sufficiently allege a change in circumstances and dismissed the amended petition. The father appeals. We reverse.

The Family Court erred when it utilized a change-in-circumstances analysis in this case. The father's initial petition stated that he was seeking an initial visitation determination and the record does not reflect that there had ever been a judicial determination, or any court-sanctioned arrangement, with respect to visitation. Since there was no prior visitation order at the time this proceeding was commenced, the court was required to consider the best interests of the child under the totality of the circumstances, without regard to a change in circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; ...