In past postings to this Blog we have discussed the need to draw thorough legal papers in order to convince the court that a hearing is necessary to decide the issue of a modification of a custody and visitation order, so as to avoid a dismissal on the papers submitted. In this posting, a recent case reversed the decision of the lower court which held that no hearing was necessary based upon the facts of that case, and denied the father's motion for a modification of their so ordered stipulation to obtain sole custody and provide only for supervised visitation.
During the lower court proceedings, the parties reached an agreement that was reduced to writing and so ordered by the court some two years earlier. It provided for joint custody of fourteen year old twins, physical custody to thefather, with certain unsupervised visitation to the mother. The lower court dismissed without a hearing, the father's application for sole custody, and also to suspend the mother's visitation, unless it was supervised. On appeal, this decision was reversed, and the case sent back for a new determination based upon the facts elicited on trial.
At first blush, this case seems quite harsh. Normally, the lower court's decision is seldom reversed. However, when reviewing the totality of the circumstances it is clear that the lower court erred and reversing its holding was really in the best interests of the children.
Let's review the facts of this case. It was shown that the mother operated a motor vehicle while in an impaired alcoholic state with the twins as passengers which caused a danger to the safety and well being of the children. She was convicted of driving while impaired. Apparently, it was alleged that the mother was an alcoholic and drug abuser, and should attend and complete programs in drug and alcohol rehabilitation, as well as anger management. Although dismissing this request, the court however restrained the mother from operating a car with the children as passengers and approved of the parties' agreement at that time to unsupervised visitation. The wrongful conduct of the mother after the agreement was signed began thereafter with alcohol and drug use.
The appellate court on appeal stated that a hearing was mandated to protect the best interest of the children, and the mother's visitation was limited to two days per week and two hours each visit, provided the visitation was supervised by a third party. It commented that a hearing is required where new facts occur during the interim since it demonstrates a real need for a change of custody in order to protect the children from any emotional or physical harm. It held that the father had shown sufficient facts in his papers to require the hearing. The case was sent back to the trial court to conduct a hearing before deciding the request for a change in custody, and the mother was ordered not to drive with the children. See Nusbaum v. Nusbaum, 2013 NY Slip Op 03307, Appellate Division, Second Department.
