Kelley v. Fifield

• Decision Date: 23 March 2018
• Docket Number: 1501,CAF 16–02241
• Citation: 159 A.D.3d 1612,72 N.Y.S.3d 754
• Parties: In the Matter of Jeffrey KELLEY, Petitioner–Appellant, v. Ashlie FIFIELD, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

159 A.D.3d 1612
72 N.Y.S.3d 754

In the Matter of Jeffrey KELLEY, Petitioner–Appellant,
v.
Ashlie FIFIELD, Respondent–Respondent.

1501
CAF 16–02241

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

Entered: March 23, 2018

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–APPELLANT.

VOLUNTEER LAWYERS PROJECT OF ONONDAGA COUNTY, INC., SYRACUSE (MARY C. JOHN OF COUNSEL), FOR RESPONDENT–RESPONDENT.

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

MEMORANDUM AND ORDER

Memorandum:

159 A.D.3d 1612

Here, the father sought to modify the prior order, which provided that he was entitled to supervised visitation with the subject child "under such circumstances and conditions as the parties can mutually agree." In support of his petition, the

159 A.D.3d 1613

father alleged that, since the entry of the prior order, there had been a change of circumstances inasmuch as respondent mother had not allowed the father to have any contact with the child, it had been three years since the last such contact, the mother had alienated the child from the father, and the father had been incarcerated. The father thus requested "correspondence with the child" and "supervised visitation to reconnect with the child." The court determined that it could not grant supervised visitation to which the father was already entitled and, in dismissing the petition without prejudice to file an enforcement petition, the court apparently took the view that modification of the prior order was not available under the circumstances herein. That was error.

Although "[a] court cannot delegate its authority to determine visitation to either a parent or a child" ( Matter of Merkle v. Henry, 133 A.D.3d 1266, 1268, 20 N.Y.S.3d 774 [4th Dept. 2015] [internal quotation marks omitted] ), it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances (see Matter of Pierce v. Pierce, 151 A.D.3d 1610, 1611, 56 N.Y.S.3d 703 [4th Dept. 2017], lv. denied 30 N.Y.3d 902, 2017 WL 4654065 [2017] ; Matter of Thomas v. Small, 142 A.D.3d 1345, 1345–1346, 38 N.Y.S.3d 461 [4th Dept. 2016] ; Matter of Alleyne v. Cochran, 119 A.D.3d 1100, 1102, 990 N.Y.S.2d 289 [3d Dept. 2014] ; cf. Matter of Michael B. v....