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Appellate Division Reversed Family Court Decision Denying Mother’s Request for Visitation Modification- Matter of Jessica D. v Michael E.2020 NY Slip Op 02133 (N.Y. App. Div. 2020)


In this case the Appellate Division reviewed an order of the Family Court of Schenectady County dismissing a mother’s motion to seek visitation with her child. The Family Court’s decision was based on two factors:  the report of the forensic evaluator and the mother’s emotional outburst during the hearing.

In Matter of Jessica D. v Michael E., the father of a child born in 2007 was in 2008 granted full legal and physical custody based largely on the fact that the mother was struggling with drug abuse. In the same order, the mother’s visitation was suspended pending an application to reconsider such order. In 2016, the mother, who had not seen the child in several years, commenced a modification proceeding in Family Court seeking visitation with the child.  A hearing was held in 2018 during which the mother was the only witness to testify. A court-appointed forensic evaluator was admitted into evidence. After the hearing the Family Court denied the mother’s request for visitation stating that it would not be in the best interests of the child. The mother appealed.

In New York courts have determined that generally it is in the best interests of a child to have a relationship with both the mother and the father. Both parents have a right to have access to their child.  When making custody the decisions, taking many factors into consideration, courts seek to come up with an arrangement that gives both parents significant access to the child. A court will deny access if it determines that allowing access would place the child in risk of physical harm or serious emotional harm.  In the case where a parent is battling drug addiction, has no stable place to live and no job, the court will not allow visitation as that parent would not be able to provide a safe environment for the child. However, a court will consider modifying a custody arrangement if there has been a significant change of circumstances since the original custody order.

The Appellate Division agreed with the Family Court that the mother satisfied her threshold burden of establishing a change in circumstances since the entry of the 2008 custody and visitation order. She showed that she had stopped abusing drugs, had steady employment, and had stable housing. The Appellate Division disagreed with the Family Court that the mother had not demonstrated that a visitation modification was warranted.

While acknowledging that she had not seen her child in 9 years because she was abusing drugs, the mother testified that she had not used drugs for at least 3 years, had a large apartment, had regained custody of her other children, had tried to reach to the child, and had a job.

The forensic evaluator who presented evidence at the hearing, concluded that despite the positive changes that the mother had made in her life, she should not be awarded visitation because her life was chaotic. It concluded that having a job, regaining custody of her other children had caused her life to be chaotic and that she was not equipped to  to add anything positive to the child’s life. The forensic evaluator also gave weight to the fact that the father was not in favor of the mother having access to the child and would not help the child see the mother.

The Appellate Division responded to the forensic evaluator’s conclusions and the Family Court’s heavy reliance on the evaluator’s finding by nothing that it was inappropriate to give such great weight to the preferences of the father and the child.  An unwillingness of the father to facilitate visitation does not mean that it would not be in the best interests of the child for the visitation to take place.  There is no indication that the child would be harmed if the visitation occurred. Because of the flaws in the forensic evaluator’s report, the Family Court should not have given the report such great weight but should have given it minimal consideration.

As for the mother’s showing of emotion during the hearing, the Appellate division acknowledged that mother’s emotional stability was rightfully a factor to consider.  However, because there was no evidence that she was prone to emotional outbursts with the children she had already regained custody of, the emotional outbursts in the courtroom should not have been considered as a basis for the court’s decision in this case.

The Appellate Division concluded that the Family Court’s dismissal of the mother’s motion for a visitation modification should be reversed as it lacked a sound basis in the record. The court also ordered that the case be remitted for additional fact-finding.  It suggested that an appropriate course of action would be for the mother and child to undergo court supervised counseling with a goal of advancing future visitation.

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