A mother appealed an order restricting her access to her two teenage children to supervised visits, arguing that the court failed to follow proper procedure and therefore deprived her of due process. The Appellate Division ruled in her favor in Matter of Damian D., et al., based largely on the fact that the mother already had an order for unsupervised visitation, issued under Article 6 of the New York Family Court Act (FCA). The family court issued the supervised visitation order during an Article 10 proceeding brought by the Department of Social Services (DSS), in which the mother was not a party and therefore did not have authority to modify the Article 6 order. The appellate court reversed that portion of the family court’s order and remanded the case.
The case involves a complicated set of family relationships and court orders. The mother had two children with the father: a son, Damian, and a daughter, Dayinara, who were 16 and 15 years old, respectively, at the time of the hearing at issue in the appeal. The mother had three younger children, and the father had one child, born in 2008, with his spouse. In 2011, a court awarded sole custody of the teenagers to the father in an Article 6 proceeding. It awarded the mother visitation on two consecutive weekends out of every three-week period, as well as holiday and vacation visitation. The mother testified that she exercised visitation consistently until November 2012, when DSS removed her three younger children from her home. She continued unsupervised visitation with Damian after that, but Dayinara declined to participate.
In April 2013, DSS commenced Article 10 proceedings against the father and his wife. They removed Damian, Dayinara, and the youngest child from the home and placed them with the youngest child’s maternal grandparents. The court sent notice of a placement hearing to the mother as a “non-respondent parent” under § 1035(d) of the FCA. The hearing took place shortly after the same court had conducted a hearing in the Article 10 case involving the mother and her three children, at which point it restricted her to supervised visitation. At the hearing involving the teenagers, DSS did not request supervised visitation for the mother with Damian and Dayinara, noting that the mother was already subject to an Article 6 order. Counsel for the children stated that the teenagers were old enough for unsupervised visits. Nevertheless, the family court issued a temporary protective order against the mother and limited her to visits supervised by DSS.
The mother appealed the protective order and the supervised visitation order. The appellate court held that her appeal of the protective order was moot, sincer the order expired in April 2014. It also held, however, that the family court lacked a “sound and substantial basis in the record” to modify the mother’s prior visitation order. The § 1035(d) notice was not sufficient to notify the mother, a non-party to the proceeding, that her visitation rights could be affected. Article 6 has its own procedures for modifying a visitation order. The appellate court held that the family court could not use § 1035(d) as a “back door vehicle” to take action against the mother.
Family law attorney Ingrid Gherman has represented clients in the greater New York City area for the past 30 years, helping people deal with difficult and complicated questions involving child custody, visitation, and support. To schedule a confidential consultation to see how we can assist you, contact us today online or at (212) 941-0767.
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