| Matter of Woodruff v Rogers |
| 2008 NY Slip Op 03851 [50 AD3d 1571] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Marvelle Woodruff, Appellant, v Kevin Rogers,Respondent. (Appeal No. 1.) |
—[*1] Bonita J. Stubblefield, Piffard, for respondent-respondent. Jeffrey M. Harrington, Law Guardian, Lackawanna, for Rashawn R. and Donta R.
Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.),entered April 20, 2006 in a proceeding pursuant to Family Court Act article 8. The orderdismissed the family offense petition.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Marvelle Woodruff, the mother of the children at issue herein, contends inappeal No. 1 that Family Court erred in dismissing her family offense petition, and she contendsin appeal No. 2 that the court erred in modifying a prior order of custody and visitation byremoving the provision that the two-hour period of weekly visitation of Kevin Rogers, thechildren's father, must be supervised by the mother. We affirm the order in each appeal. Thecourt properly dismissed the mother's family offense petition in appeal No. 1 because the motherfailed to establish "by a 'fair preponderance of the evidence' " that the father committed theviolation of harassment in the second degree (Penal Law § 240.26 [1]) and the crime ofmenacing in the third degree (§ 120.15), as alleged in her petition (Matter of Smith v Smith, 24 AD3d822, 823 [2005], quoting Family Ct Act § 832). Contrary to the mother's contentionwith respect to the order in appeal No. 2, the record establishes that the court's modification ofthe prior order of custody and visitation was in the best interests of the children (see generallyMatter of Wilson v McGlinchey, 2 NY3d 375, 380-381 [2004]; Matter of Sullivan v Sullivan, 40 AD3d865, 866). Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.