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Court Orders Supervised Visitation Where Unsupervised Visitation Would Be Detrimental To The Child- Spencer v. Killoran, 2017 NY Slip Op 991 (N.Y. App. Div. 2017)


In this case the Family Court was asked to determine whether to modify a visitation order to give the mother unsupervised visitation with her children.

In New York, visitation with a child is typically unsupervised.  This means that the non-custodial parent is generally permitted time alone with the child and is free to do whatever he or she chooses to do with the child as long as it is not in violation of the custody order. If, however, the court determines that it is not safe for the child to spend time alone with the parent, then the court will order supervised visitation.  Family Court will order supervised visitation when it determines that the child may be in danger if alone with the parent.  For example, if the parent is struggling with alcohol or drug addiction, the court would likely require supervised visitation.  If the parent has physically abused the child, the court may not want the parent to be alone with the child.  Also, supervised visitation may be required if there is a concern that the parent may abduct the child.

In Spencer v. Killoran the mother did not have custody of her children.  When the children were 6 years old, the court awarded custody to the cousins of the mother because of the mother’s abuse of alcohol. Three years later, the mother requested access to her children in the form of visitation.  Not entirely convinced that the mother had stopped abusing alcohol, the court entered an order allowing the mother unsupervised scheduled visitation with her children with the stipulation that she was monitored daily for alcohol use for a period of 6 months.  On two dates during the 6-month period, the mother tested positive for alcohol use.  The cousins petitioned the court to modify the visitation schedule to require the mother to have only supervised visits.  The court so ordered.  However, the court did not set a supervised visitation schedule, and instead directed that the visitation would be as the mother and cousins agreed. The mother appeals, arguing that the court erred in modifying the previous visitation order.

While custody and visitation orders are designed to have some degree of finality, they can be modified.  The standard is that if circumstances have changed since the previous custody or visitation order, then the parties have the right to petition the court to seek a modification to the order.  The 2014 visitation order provided that the mother would be permitted unsupervised visits with her children if she did not drink alcohol.  To make sure that she remained in compliance with the order, the mother was monitored daily for alcohol use.  On two occasions there was evidence that she did indeed drink alcohol.

In making custody and visitation decisions, the Family Court must look out for the best interests of the child.  The mother’s history of alcohol abuse caused her to lose custody of her children in 2011.  With evidence that the mother was still drinking, it is reasonable to have concerns that she might be impaired when she is around the children, putting the children in danger.  The court concluded that the fact that the mother was still abusing alcohol was a change in circumstances necessitating a change in visitation. As a result, it was appropriate for the Family Court to grant the cousins’ petition to modify the visitation order and require supervised visits.  The Appellate Division did, however, order that the Suffolk County Family Court set a visitation schedule because in the past the mother and cousins had difficulties in agreeing on dates and times for visitation.

When the Family Court orders supervised visitation, he or she has the right to petition the court and request unsupervised visitation.  However, the court will not grant the request unless the parent not only states that he or she has addressed the issues that necessitated supervised visitation, but produces evidence that things have changed and that it is in the best interests of the child for the court to change the visitation order.



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