Opinion
2021-06452 Docket Nos. V-26286-10, V-26287-10
02-08-2023
In the Matter of Danielle PARASCONDOLA, respondent, v. Michael ROMANO, appellant.
The Edelsteins, Faegenburg & Brown, New York, NY (Adam Edelstein of counsel), for appellant. Louisa Floyd, Brooklyn, NY, attorney for the child Anthony J. P. Brian Zimmerman, Brooklyn, NY, attorney for the child Christian J. P.
The Edelsteins, Faegenburg & Brown, New York, NY (Adam Edelstein of counsel), for appellant.
Louisa Floyd, Brooklyn, NY, attorney for the child Anthony J. P.
Brian Zimmerman, Brooklyn, NY, attorney for the child Christian J. P.
VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals, in part by permission, from an amended order of the Family Court, Kings County (Javier E. Vargas, J.), dated August 13, 2021. The amended order, insofar as appealed from, denied, without a hearing, the father's motion, inter alia, to modify an order of the same court (Karen Finkel Wohlforth, Ct. Atty. Ref.) dated July 26, 2011, so as to award him sole legal and physical custody of the parties’ children, and prohibited the father from filing any petitions, writs, or motions in the Family Court without counsel review and prior court approval.
ORDERED that the amended order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof prohibiting the father from filing any petitions, writs, or motions in the Family Court without counsel review and prior court approval; as so modified, the amended order is affirmed insofar as appealed from, without costs or disbursements.
In January 2021, the father moved, inter alia, to modify an order dated July 26, 2011, so as to award him sole legal and physical custody of the parties’ children. In an amended order dated August 13, 2021, the Family Court, inter alia, denied, without a hearing, the father's motion and prohibited the father from filing any new petitions, writs, or motions in the Family Court without counsel review and prior court approval. The father appeals.
"Modification of an existing court-sanctioned custody or visitation 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[ren]" ( Matter of Errante v. Murry, 172 A.D.3d 711, 712, 99 N.Y.S.3d 379 [internal quotation marks omitted]). "Before subjecting children and their parents to additional litigation, courts require that, before a full hearing is ordered, the parent seeking a change of custody must make an evidentiary showing of a change in circumstances demonstrating a need to conduct a full hearing into whether a change of custody is appropriate in order to insure the child's best interests" ( Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103 N.Y.S.3d 445 ).
Here, the Family Court properly denied, without a hearing, the father's motion, inter alia, to modify the prior order of custody. The facts alleged in the father's motion papers were insufficient to meet the threshold evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Edem v. Wondemagegehu, 199 A.D.3d 795, 158 N.Y.S.3d 140 ; Matter of Alphonse v. Alphonse, 189 A.D.3d 1028, 136 N.Y.S.3d 322 ).
However, the Family Court improvidently exercised its discretion in prohibiting the father from filing any petitions, writs, or motions in the Family Court without counsel review and prior court approval. While public policy generally mandates free access to the courts (see Board of Educ. of Farmingdale Union Free School Dist. v. Farmingdale Classroom Teachers Assn., Local 1889, AFT AFL–CIO, 38 N.Y.2d 397, 404, 380 N.Y.S.2d 635, 343 N.E.2d 278 ; Matter of Wright v. Perry, 169 A.D.3d 910, 913, 95 N.Y.S.3d 108 ), "a party may forfeit that right if he or she abuses the judicial process by engaging in meritless litigation motivated by spite or ill will" ( Matter of Wieser v. Wieser, 83 A.D.3d 950, 950, 920 N.Y.S.2d 719 ). Here, there is no basis in the record to demonstrate that the father filed frivolous petitions or filed petitions out of ill will or spite (see Matter of Genao–Archibald v. Archibald, 208 A.D.3d 1185, 1187, 173 N.Y.S.3d 880 ; Matter of Stones v. VanDenberge, 167 A.D.3d 909, 910, 90 N.Y.S.3d 244 ).
The father's remaining contention need not be reached in light of our determination.
BRATHWAITE NELSON, J.P., MALTESE, FORD and VOUTSINAS, JJ., concur.