Interference with Visitation May Result in Change in Custody

In Keefe v. Adams, 85 A.D.3d 1225 (3d Dept. 2011), the Appellate Division, Third Department, had to address issues related to interference with visitation which were raised by the father who brought a petition to modify existing  custodial and residential arrangement.  The parties had a custody and residential arrangement on the basis of May 2007 consent order which provided for joint custody, with mother having primary physical custody and father having visitation. In August 2009, father sought a modification of custody, alleging that mother moved out of county without his consent and is consistently late in exchanging child at drop-off location.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

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