| Matter of Chase v Benjamin |
| 2007 NY Slip Op 07792 [44 AD3d 1130] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Susan L. Chase, Respondent, v Gary R. Benjamin,Appellant. |
—[*1] Susan L. Chase, Dryden, respondent pro se. Francisco P. Berry, Law Guardian, Ithaca.
Kane, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered May 11, 2006, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody and visitation.
The parties are the divorced parents of one son (born in 1990). In December 2004, theystipulated to an order providing for joint custody, physical placement with petitioner, andvisitation with respondent every other weekend, overnight every Wednesday and on certainholidays. Petitioner commenced this proceeding in November 2005, seeking sole custody and thesuspension of respondent's visitation. Following a hearing, Family Court modified the order bygranting petitioner sole custody and maintaining the prior visitation schedule, except the childwas given the option of declining any scheduled visitation upon 48 hours notice to respondent.Respondent appeals.
Because petitioner failed to establish a change in circumstances warranting modification, wereverse. Courts will modify an existing custody order only when the petitioning partydemonstrates a sufficient change in circumstances since the entry of the prior order such thatmodification is warranted to further the child's best interest (see Matter of Kerwin v Kerwin, 39 AD3d 950, 951 [2007]). Thebest interest analysis should only be conducted after this [*2]threshold showing is made (see id.). Here, Family Courtfound sufficient changes based upon the parties' animosity toward one another, the child'schanging needs as he grew older and respondent's inflexibility regarding visitation. The recorddoes not support a need to modify based upon these circumstances.
Although the parties have a strained relationship, this was not a change. Even petitioneracknowledged that the nature of their relationship was exactly the same at the time theystipulated to the prior order. A child's changing needs over time can constitute a change incircumstances warranting modification; certainly a child may have different needs requiringvariation of a visitation schedule between infancy and the teen years. But here, the child'smaturation of less than one year did not constitute such a change.
The main focus at the hearing was respondent's alleged inflexibility regarding visitation.Three incidents were singled out. In the first, members of petitioner's extended family, includingrelatives from out of state, were gathering for the weekend. Although the parties disagree abouttiming, petitioner acknowledges that she realized she would be late in returning home with thechild when respondent was scheduled to pick him up for visitation. She also acknowledged thatshe did not ask ahead of time to switch weekend visitations so the child could be with her familythat weekend; that request was made only after respondent's visitation time was supposed tobegin. Respondent became quite upset when the child was not home at the pick-up time andrefused to switch weekends. In the second incident, petitioner informed respondent that hergrandfather's death was imminent and she wanted the child to remain with her and her family forthe weekend. Respondent did not agree and insisted on exercising his weekend visitation, butlater offered to bring the child to the grandfather's home on Saturday, an offer the child rejected.In the third incident, the child spoke with respondent about switching the days of his midweekvisitation for a particular week. Petitioner had no firsthand knowledge of the situation.Respondent felt that the switch was definitively planned but the child, who felt it had only beenraised as a possibility, called respondent and informed him that they would follow the regularvisitation schedule. When respondent became upset, the child hung up on him. Neither the childnor petitioner answered the phone when respondent called back, so respondent called otherrelatives and then left a harsh message for the child. Even if respondent was in some wayunreasonable in his response to the requests for alteration in the visitation schedule on these threeoccasions, that is insufficient to establish a change in circumstances since the prior orderwarranting modification. Hence, because petitioner did not establish a threshold change incircumstances, the petition should be dismissed.
Crew III, J.P., Mugglin, Rose and Lahtinen, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and petition dismissed.