Harold Salant Strassfield & Spielberg

The Appellate Division, Second Department, has held that a father’s application for sole custody and for supervised visitation for the mother, should not have been denied without a hearing, where the father had alleged that the mother operated a motor vehicle in a impaired state, posing a danger to the children.

In Nusbaum v. Nusbaum, the parties in 2011 had entered a so-ordered stipulation of settlement of their divorce action under which they were to share joint legal custody of their then 14-year-old twins. The father was awarded residential custody, with the mother having unsupervised visitation.

Here, the father had moved to modify the provisions of that stipulation so as to award him sole legal custody of the children and to suspend the mother’s visitation with the children, unless supervised. The father alleged, among other things, that the mother had operated a motor vehicle while impaired, endangering the children. The father also sought an order directing the mother to attend and complete programs in drug and alcohol rehabilitation and anger management.

Pending the determination of the father’s motion, the parties agreed to certain supervised visitation. Moreover, pending his decision on the father’s application, Westchester County Supreme Court Justice John P. Colangelo, in effect, issued a temporary restraining order prohibiting the mother from operating a motor vehicle with the children as passengers.

Ultimately, in an October 23, 2012 order, Justice Colangelo denied the father’s application without holding a hearing.

The father appealed. On December 17, 2012, the Second Department stayed enforcement of the order denying the father’s motion pending the determination of his appeal. The mother’s visitation with the children was limited to visits on two days per week, two hours per day, and the mother was prohibited from operating a motor vehicle with the children as passengers.

Deciding the appeal May 8, 2013 decision, the Second Department held that the father had satisfied his burden to show a subsequent change of circumstances so that modification may be required to protect the best interests of the children. Moreover, the appellate court held, it did not appear that Justice Colangelo possessed adequate relevant information to enable him to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary.

Accordingly, the father’s motion should not have been denied without first conducting a full evidentiary hearing to ascertain the children’s best interests. The Second Department sent the case back for such a hearing. Moreover, the Second Department again directed that in the interim, and until further order of the Supreme Court, the mother’s visitation was to be limited to two days per week, two hours per day, with the mother prohibited from operating a motor vehicle with the children as passengers.

Joseph J.A. Tringali, Sr., of counsel to Lawrence G. Nusbaum, Jr., of New Rochelle, represented the father. Donna E. Arams of Harold, Salant, Strassfield & Spielberg, of White Plains, represented the mother.