| Matter of Dobrouch v Reed |
| 2009 NY Slip Op 03421 [61 AD3d 1288] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of John Dobrouch, Appellant, v Erica Reed,Respondent. |
—[*1] David Seth Michaels, Spencertown, for respondent. Garth J. Slocum, Law Guardian, Valatie.
Lahtinen, J. Appeal from an order of the Family Court of Columbia County (Nichols, J.),entered November 26, 2007, which, in a proceeding pursuant to Family Ct Act article 6, grantedrespondent's motion to dismiss the petition.
The parties are the parents of one child (born in 2004). They stipulated before Family Courtin May 2005 to terms regarding custody and visitation, which were set forth in a consent ordereventually entered in January 2006. Respondent (hereinafter the mother) was awarded sole legaland primary residential custody. Petitioner (hereinafter the father) was provided with variousvisitation as available during his anticipated 12 months of inpatient treatment at a facility knownas Phoenix House. No other visitation was established. He did not, however, stay at PhoenixHouse, but instead received treatment at another facility (i.e., Hope House) and, thereafter, wassentenced to a prison term of three years (see People v Dobrouch, 59 AD3d 781 [2009]). The fathersubsequently commenced this proceeding seeking to modify the custody order based uponalleged changed circumstances, including his incarceration and the mother's failure to bring thechild to visit him when he was at Hope House. The mother moved to dismiss. Family Courtgranted the motion without a hearing. The father appeals.
To survive a motion to dismiss, a petition seeking to modify a prior order of custody and[*2]visitation must contain factual allegations of a change incircumstances warranting modification to ensure the best interests of the child (see Matter of Perry v Perry, 52 AD3d906, 906 [2008], lv denied 11 NY3d 707 [2008]; Matter of Witherow v Bloomingdale, 40 AD3d 1203, 1204[2007]). Initially, we note that during the delay of over a year in perfecting this appeal, the fatherhas been released from prison rendering his request for jailhouse visitation moot (see Matterof Rebecca O. v Todd P., 309 AD2d 982, 983 [2003]). As regards visitation at Hope House,the consent order addressed visitation for only a 12-month period and was based upon theassumption that the father would be at Phoenix House during that entire time. He was not atPhoenix House (or Hope House) as long as anticipated and, in any event, any relevant provisionsregarding visitation at either such facility have long since expired. No other allegations in thispetition merited a hearing and, accordingly, it was properly dismissed. The father, whosecircumstances have now changed, may bring a petition setting forth his current situation (whichis not contained in this record) and the dismissal of this petition will have no bearing on themerits of that proceeding.
Peters, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.