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Court Decides Whether to Grant Father Unsupervised Parental Access- Gonzalez v. Santiago, 167 A.D.3d 885 (N.Y. App. Div. 2018)


In this case the Family Court was asked to determine whether to grant a father unsupervised visitation with his child because he lost his job and could not to afford the fees associated with supervised visitation.

The parents of the child were never married.  Their relationship ended when the child was 6 months old, and the mother accused the father of domestic violence and received an order of protection.  Both parents petitioned for custody.  The Family Court awarded the mother custody and the father 4 hours of weekly unsupervised visitation.  A few months later the mother petitioned the court for a modification to the custody order, alleging that the father had harmed the child.  The court changed the father’s access to 4 hours per week of professionally supervised visitation.  The order required that the father pay the expense associated with the supervised visitation.

A few months later the father petitioned the court for another modification of the custody order, asking that his access be changed back to unsupervised as he had lost his job and was not able to afford to pay the fees associated with the supervised visitation.  In denying the father’s petition the Family Court noted that according to the father’s own testimony, even before he lost his job he had difficulty paying the supervised visitation expenses.  Thus, when he lost his job, there was not a true change in circumstances as required for the court to consider modifying a custody arrangement.  The father appealed.

In New York, once a custody order is in place, even if it is called “final” or “permanent,” it is not necessarily final or permanent. The court may modify it.  However, the court will not modify it unless there is a change in circumstances that would warrant it.  One change in circumstance that would warrant a modification is violence in the household of one of the parents, as it is not in the best interests of a child to spend time in a household where there is  domestic violence, or where the child is the victim of violence.

In Gonzalez v. Santiago, the court changed the original custody order after the mother brought to the court’s attention that the father had harmed the child.  When there is a finding that the noncustodial parent physically abused or threated to physically abuse the child, the court will find that there was a change in circumstances such that a custody modification is warranted. While the court can discontinue visitation if it feels that the child would be in danger, another option would be supervised visitation with either a person agreed upon by the parties such as a relative or with a mental health professional. When a mental health professional is involved, the supervision is referred to as therapeutic supervised visitation.  The goal is to help facilitate healthy interaction between the parent and the child and help the parent improve his or her parenting skills.  There are expenses associated with this type of supervised visitation.  In Gonzalez v. Santiago, the father was required to pay those expenses.

On appeal the court concluded that the Family Court erred in granting the child’s and the mother’s application to dismiss the father’s petition to modify the custody order.  The appeals court stated that by showing that he had lost his job, the father offered a prima facie showing that there was a change in circumstances.  This does not mean that the court agreed that the custody order should be modified.  It means that the father should be given the opportunity to fully argue his case for a custody order modification.  The father must present a compelling case before the court will allow unsupervised visitation, because ultimately the court will base its decision on what is in the best interests of the child.

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