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Father’s visitation reinstated after missing court date. Lemon v. Faison, 150 A.D.3d 1003 (N.Y. App. Div. 2017)


New York courts adhere to a comprehensive approach in determining custody and visitation arrangements. The paramount consideration is the best interests of the child, evaluated through a myriad of factors such as parental stability, financial well-being, and the ability to provide a nurturing environment. While the court aims to ensure both parents maintain a meaningful relationship with the child, it prioritizes the child’s safety and well-being. The process often involves fact-finding hearings, and the court may opt for a plenary hearing or demand clear articulation of factors influencing its decision. The overarching goal is to make determinations founded on a thorough assessment of the circumstances, promoting the child’s welfare.

The case of Lemon v. Faison, a 2017 decision by the New York Appellate Division, delves into a family law dispute concerning visitation rights, custody, and an order of protection. It also involved a father attempted to re-establish a connection with his children after being incarcerated.

Re-establishing parental rights, specifically seeking custody or visitation, after being released from prison is a nuanced legal process. Courts generally consider factors such as the nature of the offense, the parent’s behavior post-release, and the best interests of the child. While completing rehabilitation programs and demonstrating a stable environment can bolster a parent’s case, the court’s primary concern is the child’s welfare. The level of involvement granted often depends on the court’s evaluation of the parent’s capacity to provide a safe and nurturing environment, balancing the parent’s rights with the child’s best interests.

Following his release from a 6½-year prison term, the father sought to reconnect with his child. During his incarceration, communication with the child, then seven years old, was limited to telephone calls arranged by Khan. Post-release, Schwartz initiated unsupervised visits with the child, their frequency contingent upon Khan’s discretion.

Complications arose in November 2015 when Schwartz filed a petition seeking visitation. On December 14, 2015, Khan responded by filing a family offense petition, alleging an incident involving Schwartz’s girlfriend, resulting in an ex parte temporary order of protection. This order granted Khan temporary custody and permitted only supervised visitation for Schwartz.

On March 1, 2016, Schwartz failed to appear, leading the court to issue the March 2016 orders. These orders dismissed Schwartz’s visitation petition, granted Khan’s petition for sole custody, and imposed a final order of protection. Schwartz, contending he missed the hearing due to arrest and arraignment, moved to vacate the orders, but the Family Court, in an order on June 29, 2016, denied his motion. This denial forms the basis of Schwartz’s appeal, marking the continuation of a complex legal battle over parental rights and custody.

The primary issue revolved around the father’s motion to vacate the March 2016 orders, challenging the dismissal of his visitation petition, the grant of sole custody to the mother, and the issuance of a final order of protection.

Decision and Discussion
The Appellate Division reversed the Family Court’s decision, granting the father’s motion to vacate the orders. The father’s visitation petition was reinstated, and the case was remitted for a hearing and new determinations on both the visitation and custody petitions before a different judge.

The court emphasized a liberal policy in favor of vacating defaults in custody proceedings. The father’s reasonable excuse for missing the court date – being arrested and arraigned in criminal court – was acknowledged. The court also considered the absence of willfulness, the father’s compliance with prior court directives, and the timely filing of the motion to vacate.

Regarding the potentially meritorious claim, the court criticized the Family Court for issuing the March 2016 orders without a plenary hearing or admission of reliable evidence. Custody determinations, it stated, should be based on a full and fair examination of the relevant factors.

The decision in Lemon v. Faison underscores the importance of resolving custody disputes on their merits. The case exemplifies the court’s commitment to fair proceedings and highlights the need for careful consideration of the facts and circumstances in family law matters. The remittance to a different judge aims to ensure an unbiased and impartial resolution of the visitation and custody petitions.

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