Friday, January 22, 2016

CHILD CUSTODY - WHEN A PARENT USE DRUGS






Creek v. Dietz, 132 A.D.3d 128, 316 N.Y.S.3d 888 (Fourth Dept. 2015) (italics supplied):


"Respondent father appeals from an order modifying the existing custody and visitation order by, inter alia, directing that he have supervised visitation with the parties' child. Based on the record before us, we conclude that the Referee properly determined that petitioner mother established a sufficient change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child (Matter of Rice v. Cole, 125 A.D.3d 1466, 1467 [internal quotation marks omitted]; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684). The mother established that the father, who had a long history of substance abuse problems, was again using various illegal drugs, including cocaine, heroin and marihuana (see Matter of Laware v. Baldwin, 42 A.D.3d 696, 696, 839 N.Y.S.2d 618; Matter of Brady v. Schermerhorn, 25 A.D.3d 1037, 1038, 810 N.Y.S.2d 230). Indeed, the father admitted that he had used illegal drugs only a few weeks before the hearing on the mother's petition (see Matter of LaFountain v. Gabay, 69 A.D.3d 994, 995, 891 N.Y.S.2d 728). The mother also established that the father had demonstrated behavioral changes consistent with his behavior during prior periods of time in which he had been using illegal substances, such as missing visitation with the child for extended periods of time.

It is well settled that a determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record, i.e., is not supported by a sound and substantial basis in the record (Matter of Rulinsky v. West, 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [internal quotation marks omitted]; see Matter of Van Court v. Wadsworth, 122 A.D.3d 1339, 1340, 996 N.Y.S.2d 448, lv denied 24 N.Y.3d 916). Here, the Referee made specific findings concerning the potential harm the child faced if the father were to have unsupervised visitation (cf. Laware, 42 AD3d at 697), and we conclude that the Referee's determination to impose supervised visitation is supported by the requisite sound and substantial basis in the record (Rice, 125 A.D.3d at 1467 [internal quotation marks omitted])."


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