The last Order of Custody and Visitation between these parties was entered July 26, 2012, pursuant to a stipulation between the parties before the Court May 8, 2012. Under that stipulated order, the parties retained joint custody of the child, R., then 5 years of age. R. resided with his mother and visited his father two to three days each week on an alternating two week schedule.

Petitioner-mother has now filed a violation petition, designated 14G, a modification petition, designated 14H, last amended on February 20, 2015, a second violation petition, designated 14I, also last amended February 20, 2015, and a second modification petition designated 14L. Respondent-father has filed a violation petition, designated 14K.

Respondent's father's violation petition identifies a specific visit on December 12, 2014. The petition alleges a "direct violation on December 12th by not returning him to me Friday." Respondent offered no testimony about that event. Petitioner acknowledged she withheld a visit on December 12, based upon receipt of a text message from Respondent's mother, K. S.[*2], indicating Respondent and his girlfriend were using drugs. Petitioner indicated she withheld the visit for safety concerns until she was made aware CPS had become involved. The denial of the right of visitation is so drastic it must be based upon substantial evidence that visitation would be detrimental to the welfare of the child. McGrath v. D'Angio-McGrath 42 AD3d 440 (2d Dept., 2009). Here, the denial of visitation was momentary, one evening. Once Petitioner was aware CPS was involved and could assess safety concerns, she permitted Respondent to exercise his visitation without further delay. Under the circumstances presented, the Court finds Respondent has failed to establish Petitioner's violation of Respondent's visitation was willful and the petition is dismissed.

The first violation petition filed by Petitioner-mother alleges that on December 7, 2014, Respondent was thought to be under the influence of drugs while R. was present. The second violation petition alleges Respondent failed to return R. to her at the end of his visit on December 30, 2014, and had overnight guests in the residence; that on December 7, 2012, Respondent was using drugs and had drug paraphernalia in his possession; and finally that Respondent's girlfriend was residing in the residence with R. in December, 2014, and January, 2015, while actively using drugs. Petitioner's modification, designated H, contains essentially the same allegations.

Petitioner's allegations as to the circumstances of December 7, 2014, rest upon information supplied to her by Respondent's mother, K. S. and L. C. The credibility of the witnesses and the motivations for their statements are certainly suspect. Petitioner testified Ms. S. sent her a series of texts claiming it wasn't safe for R. as Respondent was using again. Petitioner had no direct contact with either Respondent or Ms. S. that either supported or undermined those statements. Ms. C. testified she had resided with Ms. S. from August, 2014, until December 14, 2014. In late October, Respondent also moved into Ms. S.'s apartment. Shortly thereafter Respondent's girlfriend, K. W., would be there on weekends. Testimony suggests Ms. C. and Ms. S. occupied the two bedrooms and Respondent slept in what is referred to as the "front room." When visiting, R. shared that room with Respondent as did Ms. W. on weekends.

At the time of fact finding, the only direct evidence of drug use was Ms. C.'s testimony of Respondent smoking marijuana in her bedroom on December 7, 2014. However, the acceptance of drug use in that residence is pervasive. There is the almost comical description of fifty plus year old women taking a cab from Batavia to the Buffalo bus station with a bag of sundry pills. There Ms. S. spreads her wares on the sidewalk, in the presence of a New York State Trooper, as she and a gentlemen purchaser begin inspecting the pills to determine what is in the bag and the m.s.r.p. The officer, presumably trained in the identification of controlled substances, offers his [*3]assistance in identifying the pills and arrests Ms. S.. A conviction of some level of possession follows. Ms. C.testified to finding packets of marijuana in Respondent's dresser in November, 2014. Respondent acknowledged a relationship with Ms. W., that she used drugs and that Ms. W.spent the night at his residence. Both Ms. C. and Petitioner testified that Ms. S. texted Petitioner in December, 2014, that Respondent was using drugs. There was testimony from Ms. C. about finding hypodermic needles and wrappers in Respondent's room and Respondent's admission to Trooper F. that he had been smoking marijuana on March 4, 2015, in celebration of having produced a clean urine sample at a recent drug test. The passenger with Respondent, at that time, was also in possession of hypodermic needles.

Based upon the credible evidence presented, the Court finds, by a preponderance of that evidence, that Respondent was consuming marijuana on December 7, 2014, while R. was in his home and that such act is a willful violation of the July 26, 2012 order. The testimony further establishes Respondent willfully violated that order on December 30, 2014, when he failed to return R. to Petitioner at the end of his visitation. Respondent did not deny his failure to return R. to the Petitioner, rather he attempted to justify his actions claiming R. told him his aunt, N., said bad things about Respondent and R. is not treated fairly in his mother's home. What bad things were said or when was not identified nor was any evidence presented as to how R. is not treated fairly. Neither allegation, even if true, would present a safety issue sufficient to warrant interference with Petitioner's access rights.

Petitioner has alleged Respondent permitted Ms. W. to reside in Ms. S.'s apartment with him while she was using drugs. Respondent acknowledged he maintained a relationship with Ms. W. in the fall of 2014 and, as a result, she was in the apartment frequently. Ms. C.'s testimony was that she spent the weekends there regularly. The Court finds the testimony sufficient to establish, upon a preponderance, that Respondent had overnight guests during R.'s visits in violation of the July, 2012, order.

Petitioner asks that Respondent's visitation be suspended pending a substance abuse evaluation and treatment, if recommended. She asks, in the alternative, that his visitation be supervised. The Court does direct Respondent to obtain a substance abuse evaluation at an OASAS licensed facility and follow any treatment recommendations resulting therefrom. At the commencement of the evaluation, Petitioner and the Attorney For Child are to be given the opportunity to submit information to the evaluating facility about Respondent's use of illegal or controlled substances and this Court's findings concerning the drug use of those with whom [*4]Respondent lives and associates. Petitioner and the Attorney For Child shall also be apprised of any treatment recommendations. Respondent shall sign whatever releases may be necessary to allow any treating agency to provide the Attorney For Child with compliance reports at six week intervals. Respondent's visitation with the child is modified to each Tuesday from 4:30 p.m. to 7:00 p.m., each Saturday from 10:00 a.m. to 3:00 p.m. and alternate Sundays from 10:00 a.m. to 3:00 p.m. The exchange for visitation shall be at the office the Genesee County Sheriff on Park Road in Batavia. Upon completion of the aforementioned substance abuse evaluation and a determination that treatment is not recommended or, in the alternative, that Respondent is engaged with an OASAS licensed provider with clean supervised toxicology screens at a frequency determined by the provider for thirty consecutive days, Saturday and Sunday visits shall extend to 5:00 p.m. If Respondent should fail to complete the evaluation and supply Petitioner and Attorney For Child the treatment recommendations within forty-five days of this decision, all visitation with the child shall be suspended without further court action until such evaluation is completed.

Counsel for Petitioner-mother shall submit an order consistent herewith.