| Matter of Alexander v Alexander |
| 2009 NY Slip Op 04054 [62 AD3d 866] |
| May 19, 2009 |
| Appellate Division, Second Department |
| In the Matter of Noel Alexander, Sr.,Respondent, v Martha Alexander, Appellant. |
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In a visitation proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Orange County(Currier-Woods, J.), entered May 12, 2008, as, after a hearing, granted that branch of the petitionwhich was to modify the visitation schedule provided in the parties' stipulation of settlementdated June 11, 2003, which was incorporated but not merged into the judgment of divorce, anddirected the enrollment of the child in a Big Brothers of America program through the Boys andGirls Club.
Ordered that the order is modified, on the law, by deleting the provision thereof directing theenrollment of the child in a Big Brothers of America program through the Boys and Girls Club;as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
A court may modify an order awarding custody and visitation upon a showing that there hasbeen a subsequent change of circumstances and that modification is required (see FamilyCt Act § 652 [b]; Matter of Wilson v McGlinchey, 2 NY3d 375, 380-381 [2004]).The standard to be applied is the best interests of the child, which is to be determined based onthe totality of the circumstances (Matter of Wilson v McGlinchey, 2 NY3d at 381).
Here, the Family Court properly determined that it was in the best interests of the child tomodify the visitation schedule (id.; Matter of Keylikhes v Kiejliches, 25 AD3d 801 [2006]). However,the Family Court was without authority to direct the enrollment of the child in the Big Brothersof America program through the Boys and Girls Club, as the father did not request this relief inhis petition (see Matter of McAteer v Condon, 296 AD2d 412 [2002]). Mastro, J.P.,Miller, Chambers and Austin, JJ., concur.