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MOTHER ENTITLED TO HEARING ON HER PRO SE PETITION TO MODIFY A CUSTODY AWARD; FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER MOTHER’S VISITATION; ATTORNEY SHOULD HAVE BEEN APPOINTED FOR THE CHILDREN.

The Third Department, reversing Family Court, determined mother was entitled to a hearing on her pro se petition to modify the award of custody to father. The Third Department also noted that the court should not have delegated to father complete authority to control visitation with mother, and the court should have appointed an attorney for the children. With respect to the need for a custody-modification hearing and the visitation issue, the Third Department wrote:

As the party seeking to modify an existing custodial arrangement, the mother was required to demonstrate, as a threshold, that “there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children” … . The mother's petition, filed pro se, “should be construed liberally when considering whether she sufficiently alleged a change in circumstances” …, and she should be accorded “the benefit of every favorable inference” … . “While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, generally an evidentiary hearing is necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the [children's] best interests” … . * * *

With regard to the mother's request for visitation, there is a “presumption that visitation with the noncustodial parent is in the chil[ren]'s best interests” … and, “unless visitation is inimical to the [children's] welfare, Family Court is required to structure a schedule which results in frequent and regular access by the noncustodial parent” … . The record before us contains virtually no factual background information and, as such, does not disclose whether the denial of all visitation to the mother “was based [up]on compelling reasons” or if “visitation would be detrimental or harmful to the child[ren]'s welfare” … . While we express no opinion on the propriety of such visitation, we also note that the court should not have delegated to the father complete authority to determine whether there should be any visitation between the mother and children and under what conditions such contact should occur and, upon remittal, there must be a determination in this regard … . Matter of Harrell v Fox, 2016 NY Slip Op 01534, 3rd Dept 3-3-16

FAMILY LAW (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/FAMILY LAW (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)/FAMILY LAW (ATTORNEY SHOULD HAVE BEEN APPOINTED FOR CHILDREN IN MODIFICATION OF CUSTODY PROCEEDING)/CUSTODY (MOTHER ENTITLED TO HEARING ON PRO SE PETITION TO MODIFY CUSTODY)/VISITATION (FATHER SHOULD NOT HAVE BEEN GIVEN COMPLETE CONTROL OVER VISITATION WITH MOTHER)

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