| Matter of Gilbert v Gilbert |
| 2015 NY Slip Op 04534 [128 AD3d 1286] |
| May 28, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of David M. Gilbert, Appellant, v Lori A.Gilbert, Respondent. |
Catherine E. Stuckart, Binghamton, for appellant.
Norbert A. Higgins, Binghamton, for respondent.
Thomas R. Cline, Binghamton, attorney for the children.
Peters, P.J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered August 13, 2013, which dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of two children (born in 2001 and 2002). In 2008, the parties stipulated to anorder providing sole custody of the children to the mother and supervised parenting timeevery weekend to the father. In 2013, the father commenced this proceeding seeking tomodify the prior custody order by awarding him unsupervised parenting time and jointcustody of the children. Following a fact-finding hearing, Family Court found that thefather failed to establish a sufficient change in circumstances to warrant modification ofthe prior custody order and dismissed the petition. The father now appeals.
We affirm. The party seeking to modify an existing custody order "must demonstratea sufficient change in circumstances since the entry of the prior order so as to justify amodification of that order to serve the child[ren]'s best interests" (Matter of Sherwood vBarrows, 124 AD3d 940, 940 [2015]; see Matter of Dornburgh v Yearry, 124 AD3d 949, 950[2015]). It is well settled that "Family Court's findings and credibility determinations areaccorded great deference and will not be disturbed unless they lack a sound andsubstantial basis in the record" (Matter of [*2]Trimble vTrimble, 125 AD3d 1153, 1154 [2015] [internal quotation marks and citationomitted]; see Matter of Colona vColona, 125 AD3d 1123, 1124 [2015]; Matter of Adams v Robertson, 124 AD3d 946, 947[2015]).
Here, the record reflects that, since the entry of the prior custody order, the father'ssister has supervised his visitations with the children. The father testified that he hassufficiently recovered from a disability due to a traumatic brain injury such that he shouldbe awarded unsupervised parenting time. Family Court, however, found that the father'stestimony and conduct in court revealed insufficient improvement to constitute a changein circumstances. Accepting Family Court's credibility determination (see Matter ofTrimble v Trimble, 125 AD3d at 1154; Matter of Cid v DiSanto, 122 AD3d 1094, 1096 [2014]),we find that the father failed to establish a sufficient change in circumstances warrantingmodification of the prior custody order (see Matter of Clarkson v Clarkson, 98 AD3d 1208, 1209[2012]; Matter of Scott LL. vRachel MM., 98 AD3d 1197, 1198 [2012]).[FN*]
Finally, Family Court was well within its discretion to exclude the father from thecourtroom during a portion of the mother's testimony after he disregarded numerouswarnings to cease his disruptive conduct.
Garry, Egan Jr. and Lynch, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *:To the extent that thefather contends that the proof regarding the progress that he has made addressing hisanger issues and traumatic brain injury establishes a sufficient change in circumstances,the record supports Family Court's finding that such testimony was incredible, erratic andinconsistent.