| Matter of White v Cicerone |
| 2011 NY Slip Op 00456 [80 AD3d 1102] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of Brandy M. White, Respondent, v Marc Cicerone,Appellant. (And Seven Other Related Proceedings.) |
—[*1] Jehed F. Diamond, Delhi, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Delaware County (Lambert, J.), enteredDecember 24, 2009, which, among other things, granted petitioner's application, in eightproceedings pursuant to Family Ct Act article 6, to modify a prior visitation order.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarriedparents of a son (born in 1999), who has always resided with the mother. Pursuant to a February2009 Family Court order, the mother had sole custody of the child, with the father havingvisitation every other weekend from Thursday evening until Saturday evening and on alternateweeks from Thursday evening until Friday evening. The father also was granted visitation timefor two weeks during summer vacation. Beginning in March 2009, both parties filed variouspetitions alleging violations of the order and requesting modification, including the father'srequest for custody and the mother's request to limit the father's visitation. Following fact-findingand Lincoln hearings, Family Court continued sole custody with the mother and grantedthe mother's petition for modification of the visitation order, limiting visitation to every otherSaturday from 9:00 a.m. to 5:00 p.m. The father appeals, contending that Family Courtimproperly modified the prior order of visitation.[*2]
We affirm. "A petitioner seeking to modify an existingvisitation order must demonstrate 'a change in circumstances that reflects a genuine need for themodification so as to ensure the best interests of the child' " (Matter of Sumner v Lyman, 70 AD3d 1223, 1224 [2010], lvdenied 14 NY3d 709 [2010], quoting Matter of Taylor v Fry, 63 AD3d 1217, 1218 [2009]). Contrary tothe father's contention, Family Court found that the mother had met her burden of proving achange of circumstances. Although Family Court did not expressly find that the change ofcircumstances warranted the modification of the visitation order, "this Court may make such afinding based upon our independent evaluation of the record before us" (Matter of Bishop vLivingston, 296 AD2d 602, 603 [2002]; accord Matter of Nicole VV., 296 AD2d608, 611 [2002], lv denied 98 NY2d 616 [2002]). Here, there is evidence in the recordthat, since the prior order, the father harassed and threatened the mother, used illegal drugs infront of the child and overmedicated the child by giving him adult cold medicine in a dosage thatwas higher than that recommended for adults. There is also evidence that the father brought thechild to his parents' house, where the child watched as the father shot rats that were inside thehome. Further, there was evidence that there had been a deterioration of the father/sonrelationship as a result of these incidents. Accordingly, we conclude that there is ample supportin the record that a limitation in the father's visitation schedule is in the best interest of the child(see Matter of Peabody v Peabody,3 AD3d 804, 804-805 [2004]).
Mercure, J.P., Spain, Lahtinen and Garry, JJ., concur. Ordered that the order is affirmed,without costs.