Shawn MM. v. Jasmine LL.

• Decision Date: 20 February 2020
• Docket Number: 527731
• Parties: In the Matter of the SHAWN MM., Appellant, v. JASMINE LL., Respondent. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 1186

120 N.Y.S.3d 452

In the Matter of the SHAWN MM., Appellant,

v.JASMINE LL., Respondent.

(And Another Related Proceeding.)

527731

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

Calendar Date: January 17, 2020

Decided and Entered: February 20, 2020

Monique B. McBride, Albany, for appellant.

Palmer J. Pelella, Binghamton, attorney for the child.

Before: Garry, P.J., Egan Jr., Clark, Mulvey and Colangelo, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeals from two orders of the Family Court of Broome County (Pines, J.), entered September 26, 2019, which dismissed petitioner's applications, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a child (born in 2017). In September 2018, the father filed two petitions seeking to modify an August 2018 order, entered upon his default, awarding sole custody of the child to the mother. The father, who was incarcerated and proceeding pro se, asked Family Court to modify the order by granting him visitation. Family Court dismissed the father's petitions, finding that he failed to make a legally sufficient showing to warrant a hearing. The father appeals.¹

Although Family Court is not required to hold a hearing in every case, a hearing should generally 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 child's best interests" ( Matter of Horowitz v. Horowitz, 154 A.D.3d 1207, 1208, 62 N.Y.S.3d 229 [2017] [internal quotation marks and citations omitted] ). "In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference" ( Matter of Miller v. Bush, 141 A.D.3d 776, 777, 34 N.Y.S.3d 724 [2016] [citations omitted] ).

In its August 2018 order awarding sole custody to the mother upon the father's default, Family Court "ordered that the rights are reserved for [the father] to file for custody and/or visitation." Because the order did not otherwise address visitation, it appears that Family Court did not intend to require the father to demonstrate a change in circumstances in order to petition for visitation (see generally Matter of Jackson v. Wylie–Tunstall, 137 A.D.3d 1032, 1033, 27 N.Y.S.3d 244 [2016] ). In dismissing the father's visitation petitions, Family Court made no determination regarding a change in circumstances, but instead stated that the father had not made "a legally sufficient allegation regarding the child's best interests." Upon review, to the extent that it was necessary for him to do so, we find that the father demonstrated a change in circumstances arising from his incarceration (see Matter of Russell v. Simmons, 88 A.D.3d 1080, 1081, 931 N.Y.S.2d 273 [2011] ; Matter of Howard v. Barber, 47 A.D.3d 1154, 1155, 850 N.Y.S.2d 286 [2008] ; see also Matter of Lapham v. Senecal, 125 A.D.3d 1210, 1210, 4 N.Y.S.3d 384 [2015] ; Matter of Cole v. Comfort, 63 A.D.3d 1234, 1235, 880 N.Y.S.2d 373 [2009], lv denied 13 N.Y.3d 706, 2009 WL 2998196 [2009] ).

We note that "[v]isitation with a noncustodial parent, even one who is incarcerated, is presumed to be in the best interests of the child[ ]" ( Matter of Aaron OO. [Amber PP.], 170 A.D.3d 1436, 1436, 96 N.Y.S.3d 745 [2019] ). Further, "as a general matter, custody determinations should be rendered only after a full and plenary hearing" ( S.L. v. J.R., 27 N.Y.3d 558, 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 [2016] ). This guideline applies to requests for visitation and contact, as presented here (see Matter of Nathaniel V. v. Kristina W., 173 A.D.3d...