A father had brought an application to the Family Court seeking a modification of a custody order. Father and mother had initially stipulated the mother would have sole legal custody of the children and the father would have parenting time. Father thereafter brought a proceeding to change physical custody of the children from the mother to him. He claimed the mother had prevented him from having parenting time with the children. He also argued the mother’s lifestyle was unstable and had a negative influence on the children. Unfortunately for the father, the Family Court dismissed his application. The father thereafter appealed.
The appeal was heard by the Appellate Division for the Third Department, an appeals court. The appeals court found the record supported the lower court’s finding the father did not meet his burden of proof to show a modification of the prior custody order was in the children’s best interest. The court took into consideration the fact the father had not utilized his parenting time with his children for the years 2006 through 2011. It should be noted the parties reconciled in 2011, but during this reconciliation it was found the father engaged in “fits of domestic violence” in the presence of the children. The appeals court therefore found no reason to change the sole custody from the mother to the father. However, the appeals court found the Family Court should have looked into the issue of providing the father with an appropriate mechanism for contacting or communicating with his children. The appeals court stated there had been a change of circumstances since the original 2006 court order and therefore the father’s right to have parenting time with his children needed to be reevaluated. The case was therefore sent back to the Family Court to establish an appropriate parenting time arrangement for the father.