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Court Will Suspend Visitation Where It Has Been Detrimental to the Child’s Mental State – Lupo v. Rainsford, 162 A.D.3d 1032 (N.Y. App. Div. 2018)


In this case a father appealed a decision of the Family Court to suspend his visitation. The original custody order followed the parents’ divorce.  The father was granted visitation.  The order was later modified requiring that the father’s parental access had to occur in a public place.  The mother again petitioned the court to modify the custody order, further restricting the father’s access to the child.  The Family Court granted the mother’s petition and suspended the father’s access altogether.  The father appealed.

When the Family Court issues a final custody order, it will only change it if the circumstances have significantly changed, as a custody order is issued only after the court has carefully considered substantial testimony and evidence.  Often there is testimony from medical professionals.  When appropriate the child will testify and give his or her preference.  The goal of Family Court is always to facilitate healthy relationships between the child and both parents, and works with both parents to make sure that they each get to spend a significant amount f time with the child.  However, each case is different.  Ultimately, the child court will take all of the information presented and make a custody decision based on what is in the best interests of the child.  In some cases that may mean that it is necessary to modify the order so that the visitation is restricted.

Circumstances that would warrant a change to a custody order include a change in the lifestyle of the household, such as a new job that requires the parent to be absent often.  Substance abuse or violence in the household would require a modification as it is not in the best interests of the child to be in a dangerous environment.  If a parent experiences physical or mental health problems such that he or she would have difficulties caring for the child or such that the child would be in danger, the court would consider modifying the custody order.  Of course, the court will consider the preference of the child, particularly when the child gets older.

In Lupo v. Rainsford the impetus for the mother petitioning the court to modify the custody order was the deterioration in the mental and physical health of the child.  Clearly, for some time there had been problems associated with the child spending time with the father, as the first modification required the father’s access to occur in a public place and there was a therapeutic visitation order in place. In the current petition, the mother alleges that visitations with the father have caused the child to suffer mental health problems.  The child’s therapist testified that the child experienced fear and anxiety surround the father’s parent access, and that the child expressed suicidal thoughts. Based on this evidence, consistent with the requirement of Family Court Act § 467(b)(ii), the Family Court found that circumstances had changed and that it was in the child’s best interests to suspend the father’s visitation.

Whether the custody order is labeled a temporary order, a final order, a permanent order, or a modification, a custody order is never truly permanent or final.  Either parent has the right to return to court and petition for a modification.  It is likely that the father in this case will petition to have his visitation rights reinstated—perhaps after he has gone through counseling. Regardless, the court will only grant a petition to modify an order if the court is convinced that doing so is in the best interests of the child.


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