Leaving parenting-time decisions to the future agreement of the parents is not a great idea, particularly with quarreling parents. So held the Appellate Division, Second Department, in its February, 2019 decision in Cabano v. Petrella.
In that case, the parents had entered into a December, 2013 so-ordered stipulation which, among other things, reaffirmed their joint legal custody, reaffirmed the mother’s residential custody, and set forth a detailed parental access schedule. That arrangement remained substantively in effect in a so-ordered modification stipulation entered in October, 2016.
In June, 2017, the father petitioned for a modification of the parental access schedule (apparently at least the third proceeding after parenting rights were initially established). After a hearing, Suffolk County Family Court Referee Kerri N. Lechtrecker granted the father additional parental access with the child.
Further, the Referee modified the number of hours of access to which each party was entitled on the mother’s birthday, the father’s birthday, and the child’s birthday. The order provided, in effect, that the parties each would have parental access with the child on his or her own birthday, and on the child’s birthday, if the birthday was during the other party’s parental access, for two hours on a school day and for four hours on a non-school day. The order required the parties to cooperate in reaching an agreement on the details.
The mother appealed. The Second Department modified that order.
The appellate court first noted that modification of an existing court-ordered parental access arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child. Among other things, the child’s best interests lie in her being nurtured and guided by both parents. In order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, parental access must be frequent and regular.
Since determinations regarding the best interests of the child depend in large part upon a trial court’s assessment of character and the credibility of the parties and witnesses, that court’s credibility findings are generally accorded deference; its custody determinations will not be disturbed unless they lack a sound and substantial basis in the record.
Here, the Referee’s determination that the child’s best interests would be served by a parental access schedule that increased the amount of parental access afforded to the father had a sound and substantial basis in the record, and would not be disturbed.
Nevertheless, the Second Department agreed with the mother and the attorney for the child that the Referee should have set forth a more precise parental access schedule with respect to the parties’ and the subject child’s birthdays. Leaving the parties to agree on the details was unrealistic given the parties’ relationship.
Accordingly, Second Department remitted the matter to the Family Court for a new determination as to the number of hours for which each party would be entitled to parental access with the child on the mother’s birthday, the father’s birthday, and the child’s birthday, and the parties’ respective priority in selecting the times such parental access shall occur on those days.
Susan D. Stuart, of Smithtown, represented the mother. Karyn A. Villar, PLLC, of Hauppauge, represented the father. John B. Belmonte, of counsel to Laurette D. Mulry, of Central Islip, served as attorney for the child.