William F.G. v. Lisa M.B.

• Citation: 169 A.D.3d 1428,92 N.Y.S.3d 805
• Decision Date: 01 February 2019
• Docket Number: 1244,CAF 17–01983
• Parties: In the Matter of WILLIAM F.G., Petitioner–Respondent, v. LISA M.B., Respondent–Appellant.
• Court: New York Supreme Court Appellate Division

169 A.D.3d 1428
92 N.Y.S.3d 805

In the Matter of WILLIAM F.G., Petitioner–Respondent,
v.
LISA M.B., Respondent–Appellant.

1244
CAF 17–01983

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

Entered: February 1, 2019

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANET C. SOMES OF COUNSEL), FOR RESPONDENT–APPELLANT.

SARA E. ROOK, ROCHESTER, ATTORNEY FOR THE CHILD, APPELLANT PRO SE.

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

169 A.D.3d 1428

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother and the Attorney for the Child (AFC) appeal from an order that, inter alia, granted petitioner father's petition

92 N.Y.S.3d 807

to modify a prior order of custody and visitation by naming the father's new wife as the supervisor of his visitation with the subject children and permitting him to designate the location of visitation, including his own home. We reverse.

We note that the prior order, which was entered upon stipulation by the parties after the father was convicted of sexually abusing their then-four-year-old daughter, granted sole legal and physical custody of the children to the mother; required the father's visitation to be supervised by either his therapist, who specializes in sexual abuse, or the maternal grandmother of the children; and specified that visitation was to occur at a location mutually agreed upon by the father and the grandmother.

Preliminarily, we agree with the mother that Family Court erred in drawing a negative inference against her based on her failure to testify at the hearing. The mother had no relevant

169 A.D.3d 1429

testimony to offer inasmuch as she had no personal knowledge of the allegations in the modification petition, i.e., the father's completion of sex offender treatment, his compliance with the terms of his probation, his visits with the children, and his marriage to his new wife. Thus, we conclude that a negative inference against the mother was unwarranted because she did not "withhold[ ] evidence in [her] possession or control that would be likely to support [her] version of the case" ( Noce v. Kaufman, 2 N.Y.2d 347, 353, 161 N.Y.S.2d 1, 141 N.E.2d 529 [1957] ; see Matter of Nassau County Dept. of Social Servs. v. Denise J., 87 N.Y.2d 73, 79, 637 N.Y.S.2d 666, 661 N.E.2d 138 [1995] ).

We further agree with the mother and the AFC that the father failed to meet his burden, as the party seeking modification of the prior order, of demonstrating a sufficient change in circumstances since the time of the stipulation to warrant an inquiry into the best interests of the children (see Matter of McKenzie v. Polk, 166 A.D.3d 1529, 1529, 85 N.Y.S.3d 810 [4th Dept. 2018] ; Matter of Jones v. Laird, 119 A.D.3d 1434, 1434, 990 N.Y.S.2d 396 [4th Dept. 2014], lv denied 24 N.Y.3d 908, 2014 WL 5394106 [2014] ). Although the court correctly identified in its decision the applicable standard for modification of an existing custody and visitation order and referenced several circumstances that generally may support a court's finding of a sufficient change in circumstances, the court failed to make express findings relative to the change in circumstances alleged by the father in his petition. Notwithstanding that failure, "we have the authority to ‘review the record to ascertain whether the requisite change in circumstances existed’ " ( Matter of Allen v. Boswell, 149 A.D.3d 1528, 1528, 53 N.Y.S.3d 432 [4th Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4653468 [2017] ; see Matter of Greene v. Kranock, 160 A.D.3d 1476, 1476, 74 N.Y.S.3d 826 [4th Dept. 2018] ).

Upon our independent review of the record, we conclude that the father failed to establish the requisite change in circumstances (...