| Matter of VanDusen v Riggs |
| 2010 NY Slip Op 06904 [77 AD3d 1355] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| In the Matter of William VanDusen, Appellant, v Melissa L.Riggs, Respondent. |
—[*1] Doreen M. St. Thomas, Clark Mills, for respondent-respondent. Karen Stanislaus-Fung, Attorney for the Child, Clinton, for Alexis V.
Appeal from an order of the Family Court, Oneida County (Brian M. Miga, J.), entered May 18,2009 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: The father of the child at issue in these appeals is the petitioner in appeal No. 1 anda respondent in appeal No. 2. He appeals from an order in appeal No. 1 that, following a hearing,dismissed his petition seeking to modify a prior custody order, and he appeals from an order in appealNo. 2 that granted the petition of the Law Guardian for the subject child seeking to modify a priorvisitation order.
The father contends in appeal No. 1 that Family Court erred in dismissing his petition following ahearing on the issues of both custody and visitation on the ground that he failed to demonstrate asignificant change in circumstances to warrant a change in the existing custodial arrangement. We rejectthat contention (see generally Matter of Atkins v Maynard, 288 AD2d 878 [2001], lvdenied 97 NY2d 609 [2002]; Matter of Irwin v Neyland, 213 AD2d 773 [1995]). It iswell established that an existing custodial arrangement should not be altered "merely because of changesin marital status, economic circumstances or improvements in moral or psychological adjustment, atleast so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue asthe proper custodian" (Obey v Degling, 37 NY2d 768, 770 [1975]; see Fox v Fox,177 AD2d 209, 211 [1992]). Even assuming, arguendo, that the father established a significant changein circumstances, we conclude on the record before us that a change in custody would not be in thebest interests of the child (see generallyMatter of Yaddow v Bianco, 67 AD3d 1430 [2009]; Matter of Maher v Maher, 1 AD3d 987, 988-989 [2003]).
With respect to the order in appeal No. 2, we reject the contention of the father that the LawGuardian failed to make a sufficient showing of a change in circumstances to warrant a modification of[*2]the prior visitation order. Such an order is not subject tomodification unless there has been a sufficient change in circumstances since the entry of the prior orderthat, if not addressed, would have an adverse effect on the child's best interests (see Matter of Neeley v Ferris, 63 AD3d1258, 1259 [2009]; Matter of Chase vBenjamin, 44 AD3d 1130, 1130-1131 [2007]). Here, the Law Guardian established at thejoint custody and visitation hearing that, since the entry of the prior visitation order, the father hadrelocated from Virginia to Texas and that the directive in the prior visitation order requiring the child tospend six weeks of her summer vacation with the father at his residence presently interfered with thechild's increasing participation in social and extracurricular activities at the child's primary physicalresidence. In addition, although the wishes of the 15-year-old child are not determinative, theynevertheless are entitled to great weight where, as here, the " 'age and maturity [of the child] wouldmake [her] input particularly meaningful' " (Veronica S. v Philip R.S., 70 AD3d 1459, 1460 [2010]). In this case,the child expressed a desire to limit the amount of time she spent away from her primary physicalresidence during the summer months. We thus reject the father's contention that the court abused itsdiscretion in determining that the best interests of the child would be served by reducing the amount ofvisitation with the father at his home in Texas during the child's summer vacation from six weeks to twoweeks (see generally Matter of Wojcik v Newton [appeal No. 2], 11 AD3d 1011 [2004]; Matter of Rought v Palidar, 6 AD3d1112 [2004]).
Contrary to the further contention of the father in each appeal, the court did not abuse its discretionin denying his request to have the child testify in court and instead conducting an in camera interview(see Matter of Lincoln v Lincoln, 24 NY2d 270, 272 [1969]; Matter of Farnham vFarnham, 252 AD2d 675, 677 [1998]). Finally, we reject the father's remaining contention in eachappeal that the court erred in conducting the in camera interview before further evidence was presentedat the hearing. The record demonstrates that, at the time of the interview, the court was aware of allissues presented by the parties, and that the evidence presented following the in camera interview didnot raise any new issues (cf. Kerfein v Bruno, 23 AD2d 961, 962 [1965]).Present—Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.