| Matter of Mark P. v Jamie Q. |
| 2009 NY Slip Op 05709 [64 AD3d 921] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Mark P., Respondent, v Jamie Q.,Appellant. |
—[*1] Eugene P. Grimmick, Troy, for respondent. Alexander W. Bloomstein, Law Guardian, Hillsdale.
Rose, J. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered February 20, 2008, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody and visitation.
The parties are the parents of a daughter born in 2000. In 2005, respondent (hereinafter themother) petitioned for sole custody based upon her allegation that petitioner (hereinafter thefather) had sexually abused the daughter. After a hearing in June 2006, and without making afinding on the record as to whether the alleged sexual abuse had occurred, Family Court grantedthe mother sole custody and directed that the father have only supervised weekly visitation. InSeptember 2006, the father petitioned for modification of that custody order to permit him tohave unsupervised weekly visitation based upon his allegation that he had been found innocentof all charges relating to the reported sexual abuse. When the mother moved for dismissal of thepetition for its failure to allege a sufficient change in circumstances, Family Court denied themotion. After fact-finding and Lincoln hearings, the court found a change ofcircumstances and granted the father gradually increasing unsupervised visitation. The mothernow appeals.
Initially, we are unpersuaded that Family Court erred in denying the mother's motion todismiss the petition. To survive a motion to dismiss, a petition seeking to modify a prior order ofcustody and visitation must contain factual allegations of a change in circumstances that, if [*2]established at an evidentiary hearing, could afford a basis formodification in the child's best interests (see Matter of Perry v Perry, 52 AD3d 906, 906 [2008], lvdenied 11 NY3d 707 [2008]; Matter of Witherow v Bloomingdale, 40 AD3d 1203, 1204[2007]). Since Family Court restricted the father's visitation based upon a suspected risk to thechild, we agree with the court that evidence showing that the hotline report was unfounded orexpunged would establish a sufficient change in circumstances (see Matter of Witherow vBloomingdale, 40 AD3d at 1204; Matter of Williams v Mullineaux, 271 AD2d 869,870 [2000]).
Ultimately, however, Family Court based its finding of a change in circumstances upon thedetermination that the father had reestablished a meaningful relationship with the daughter, thatshe benefits from her visitation with him and that the mother refuses to work with him tofacilitate additional contact. In addition, despite the mother's view that the father has nothing tooffer the daughter and the reservations about unsupervised visitation voiced by two witnesseswho had counseled the father and daughter, the agency which supervised the past visitation andthe child's Law Guardian each favored the transition to unsupervised visitation. As there is asound and substantial basis in the record supporting Family Court's grant of gradually increasingunsupervised visitation, its exercise of discretion will not be disturbed (see Matter of Roe v Roe, 33 AD3d1152, 1155 [2006]; Matter ofJohnson v Johnson, 13 AD3d 678, 679 [2004]; Matter of Susan GG. v JamesHH., 244 AD2d 731, 734 [1997]).
Finally, to the extent that the father argues that Family Court improperly delegated itsauthority by making further expansion of his visitation subject to agreement between thedaughter's counselor and the parties, his argument is not properly before us because he took noappeal from Family Court's order (see Family Ct Act § 1113; Matter of Sanders v Slater, 53 AD3d716, 717 n [2008]).
Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.