| Matter of Roelofsen v Tiberie |
| 2009 NY Slip Op 05782 [64 AD3d 603] |
| July 7, 2009 |
| Appellate Division, Second Department |
| In the Matter of Phillip Roelofsen, Appellant, v JuliettaTiberie, Respondent. |
—[*1] Maxine K. Last, Garden City, N.Y., for respondent. Robert D. Gallo, Bohemia, N.Y., attorney for the children.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), datedDecember 2, 2008, which, after a hearing, granted the mother's motion, in which the attorney forthe children joined, to dismiss his amended petition to modify certain custody provisions of theparties' judgment of divorce entered September 26, 2005, awarding the mother physical custodyof the parties' three children, so as to award him physical custody of the subject children.
Ordered that the order dated December 2, 2008 is affirmed, with costs.
Pursuant to the parties' judgment of divorce, which incorporated but did not merge the termsof the parties' stipulation of settlement, the mother was awarded physical custody of the parties'three children, and the father was awarded visitation. The father commenced the instantproceeding seeking physical custody of the parties' three children.
"To modify an existing custody arrangement, there must be a showing of a change ofcircumstances such that modification is required to protect the best interests of the child" (Matter of Zeis v Slater, 57 AD3d793, 793 [2008], lv denied 12 NY3d 705 [2009]; see Family Ct Act §652 [a]; Matter of Molinari v Tuthill,59 AD3d 722 [2009]; Matterof Manfredo v Manfredo, 53 AD3d 498, 499 [2008]). Here, the Family Court properlygranted the mother's motion, in which the attorney for the children joined, to dismiss the father'samended petition to modify certain custody provisions of the parties' judgment of divorce. Thefather presented no evidence of parental alienation that would justify a change in physicalcustody (see Matter of Mooney vFerone, 34 AD3d 679 [2006]). Moreover, the father failed to demonstrate that an awardof physical custody to him would be in the best interests of the children.
While the father contends that the refusal of his oldest son to participate in visitation withhim is caused by the mother's interference, the record reveals that the deterioration of therelationship between the father and the parties' oldest son is due to the father's own conduct andthe father's failure to make genuine efforts towards reconciliation.[*2]
The father's remaining contention is without merit.
We decline the mother's request to impose a sanction against the father for bringing anallegedly frivolous appeal (see 22 NYCRR 130-1.1). Skelos, J.P., Angiolillo, Balkin andBelen, JJ., concur.