| Matter of Kashif II. v Lataya KK. |
| 2012 NY Slip Op 07014 [99 AD3d 1075] |
| October 18, 2012 |
| Appellate Division, Third Department |
| In the Matter of Kashif II., Appellant, v Lataya KK., Respondent.(And Two Other Related Proceedings.) |
—[*1] Norbert A. Higgins, Binghamton, for respondent. Judith E. Osburn, Binghamton, attorney for the child.
Rose, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredMarch 16, 2011, which dismissed petitioner's applications, in three proceedings pursuant toFamily Ct Act articles 6 and 8, to modify prior orders of custody, and for an order of protection.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) agreed in April2010 to a stipulated order of custody granting the mother sole legal custody of their child (born in2006) and awarding the father visitation on alternating weekends, an overnight stay eachWednesday and additional visitation at any other times as the parties may agree. The fathercommenced this visitation modification proceeding two months later in June 2010. He thenamended his petition in August 2010, seeking, among other things, to increase his visitation totwo consecutive overnight stays during each week and add the Saturdays when he is not orderedto have visitation but the mother is working. The father also commenced a family offenseproceeding alleging, among other things, that the mother physically abused the child by hittinghim with a belt.[FN*] After fact-finding hearings on the petitions, Family Court dismissed them at the [*2]close of the father's presentation of evidence, finding that he failedto demonstrate that the mother committed a family offense or that a sufficient change incircumstances warranting modification of the visitation schedule had occurred. The father nowappeals.
With respect to the family offense petition, the complete lack of any evidence that the child'sphysical condition was impaired or that he was caused substantial pain supports Family Court'sconclusion that the father failed to establish that the mother's admitted conduct of having used abelt to discipline the child rose to the level of assault in the third degree (see Penal Law§§ 10.00 [9]; 120.00; Matter of Ortiz v Ortiz, 2 AD3d 1236, 1237 [2003]; compare Matter of Boua TT. v QuamyUU., 66 AD3d 1165, 1166 [2009], lv denied 14 NY3d 702 [2010]). AlthoughFamily Court referred to a report prepared by the Broome County Department of Social Servicespursuant to Family Ct Act § 1034, which is not included in the record, it apparentlydetermined that the allegations of excessive corporal punishment were unfounded. Inasmuch asthe father failed to support his family offense petition with sufficient evidence, any error inconsidering the report without giving the parties an opportunity to address it was harmless (see Matter of Thomas v Osborne, 51AD3d 1064, 1069 [2008]; Matter of Rush v Rush, 201 AD2d 836, 838 [1994]).
With respect to the modification petitions, the father was required to demonstrate "a changein circumstances that reflects a genuine need for the modification so as to ensure the bestinterests of the child" (Matter ofD'Angelo v Lopez, 94 AD3d 1261, 1262 [2012] [internal quotation marks and citationsomitted]; accord Matter of Rikard vMatson, 80 AD3d 968, 969 [2011], lv denied 16 NY3d 709 [2011]). Only wherethis threshold showing has been made may the court proceed to the best interests analysis (see Matter of Clark v Ingraham, 88AD3d 1079, 1079 [2011]; Matter ofScott QQ. v Stephanie RR., 75 AD3d 798, 800 [2010]). Although the father contendsthat his access to the child has been limited by the mother and that she refuses to provide himwith additional visitation, there is no evidence in the record that the mother interfered with thefather's scheduled visitation. As for the father's desire for additional visitation beyond the termsof the stipulated order, the mother's unwillingness to agree to it, without more, is insufficient toestablish a change in circumstances (seeMatter of Gridley v Syrko, 50 AD3d 1560, 1561 [2008]; Matter of Chase v Benjamin, 44 AD3d1130, 1131-1132 [2007]; Matter ofSchwitzer v Plank, 8 AD3d 1077, 1077 [2004]). Accordingly, Family Court properlydismissed both modification petitions (see Matter of Ildefonso v Brooker, 94 AD3d 1344, 1344 [2012]; Matter of Owens v O'Brien, 91 AD3d1049, 1050-1051 [2012]; Matter of Dickinson v Dickinson, 309 AD2d 994, 995[2003]).
Finally, as the child's position has been properly communicated to us, there is no basis for afinding that the attorney for the child has failed to fulfill her responsibility (see 22NYCRR 7.2 [d] [3]; compare Matter ofMark T. v Joyanna U., 64 AD3d 1092, 1092 [2009]). We have considered the father'sremaining contentions and find them to be without merit.[*3]
Spain, Kavanagh, Stein and McCarthy, JJ., concur.Ordered that the order is affirmed, without costs.
Footnote *: Prior to the fact-finding hearing,Family Court, on its own motion, dismissed the family offense petition against the mother'sboyfriend. We note that Family Court's action was without prejudice to the father filing a newpetition against the boyfriend. Moreover, while the father claims that the severance of thepetitions was error in that he was unable to call the boyfriend to testify, he did not register thisobjection before Family Court and did not otherwise seek to call the boyfriend as a witness.