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These are appeals from an amended order of the Family Court of Columbia County entered 3 December 2009, which, in proceeding No. 1 pursuant to Family Ct. Act article 6, clarified a prior order of custody and from an order of said court, entered 3 May 2010, which dismissed petitioner’s application in proceeding No. 2 pursuant to Family Ct. Act article 6 to modify a prior order of custody.
The petitioner, the father, has a daughter born in 1995 to respondent KR and a son born in 1999 to respondent LB. In July 2009, the father separately petitioned to modify prior visitation orders entered on consent as to each child. After a combined hearing, Family Court granted a motion by the attorney for the daughter to dismiss the petition as to her for failure to allege a sufficient change in circumstances. The father withdrew his petition at the hearing and the court issued an amended order. The father now appeals from both orders.
During the hearing, it was established that the 42 year old petitioner criminal father is a convicted sex offender. Petitioner pleaded guilty in 1990 when he was aged 22 to sexual abuse of a 16-year-old girl. Again, he pleaded guilty in 2000 when he was aged 32 for statutory rape of a 16-year-old girl
He had reportedly completed parole and sex offender treatment and substance abuse treatment for long-term poly-substance abuse, but an order of protection precluded unsupervised contact with anyone under age 18, although contact with his children was allowed by court order.
The prior order of custody on August 2007, sole legal and physical custody as to the daughter was awarded to KR. It provided that KR would enroll the daughter in a mental health program to address whether to allow the father therapeutic visitation, and permitted him to re-petition for such visitation no sooner than 90 days after the date of the order.
In July 2009, two years later, the father filed the instant modification petition seeking therapeutic visits with her, citing only the passage of 90 days as the change in circumstances. At the hearing, the father cited his sobriety, but testified that he had been sober for nine years, i.e., dating back well before the 2007 order. He also reported his successful treatments, which were not documented or dated. He provided no evidence pertaining to the outcome of the daughter’s mental health evaluation ordered two years earlier as a precondition to Family Court’s consideration of therapeutic visitation.
Contrary to his claim, the 90-day period in that prior custody order was a waiting period in which to conduct the daughter’s mental health evaluation before therapeutic visitation could be considered, and under no interpretation could that order be viewed as dispensing with the requirement that a change in circumstances be shown warranting a modification in accordance with Family Ct. Act ยง 467[b][ii] and the case of Matter of Crippen v Keator. Although afforded the opportunity, the father failed to even allege a sufficient change in circumstances and, thus, the court properly dismissed that petition based on Matter of Watts v Watts.
The father’s modification petition as to his son sought to allow that visits be supervised by a named couple known to the parents or by LB. The September 2008 visitation order provided that therapeutic visits to continue to ensure that visits will be appropriate and to allow participants to discuss concerns and questions as interactions occur. Recommendation by therapeutic supervisor would be grounds for petitioning the court for modification.
CB, the psychologist who supervised six visits between the father and son in 2008 and 2009, recommended that the requested supervised visits be permitted. The psychologist revealed that the father had disclosed numerous accidental contacts with the son that year in BL’s presence which she testified did not affect her recommendation.
The father testified that he believed the prior order allowed these nontherapeutic visits under the supervision of LB, prompting the court to question why he had petitioned to modify the order to allow that type of visitation if it was already permitted. The court indicated that only therapeutic visitation had been permitted, consistent with the stipulation of the parties when they consented to that order. After conferring with counsel, the father moved to withdraw that petition, and the record reflects that the court thereafter considered it to have been withdrawn. Having withdrawn that petition, the father is not aggrieved by the denial of the relief requested therein based on Matter of Jennie EE.
The Family Court subsequently issued a corrected order of visitation, clarifying that the father is only to have contact with the son through therapeutic visits supervised by BL. To the extent that the father now objects to that clarification, there can be no doubt of a trial court’s discretion to cure mistakes defects and irregularities that do not affect substantial rights of parties based on CPLR 5019[a] and Kiker v Nassau County or to amend a judgment to make it reflect what the court’s holding clearly intended based on Matter of Owens v Stuart. The court finds that the original order clearly contemplated and provided for therapeutic visitation only, subject to a therapist’s recommendation to support a future modification and the court’s amended order properly clarified that point to resolve any ambiguity in accordance with Reback v Reback.
The court affirms the amended order, without costs.
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