| Matter of Bunger v Barry |
| 2011 NY Slip Op 07317 [88 AD3d 1082] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Scott A. Bunger, Appellant, v Amanda J.Barry et al., Respondents. |
—[*1] Samuel D. Castellino, Elmira, for appellant. Michele E. Stone, Vestal, attorney for the child.
Peters, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered May 12, 2010, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for modification of a prior order of visitation.
Petitioner (hereinafter the father) and respondent Amanda J. Barry (hereinafter the mother)are the parents of a daughter (born in 1997). Respondent Phyllis Burns is the child's maternalgrandmother and Maxine Bunger is the child's paternal grandmother. Two years after the child'sbirth, the father was sentenced to a 12-year prison term based upon his convictions of rape in thefirst degree and attempted sodomy in the first degree. He was released from prison in September2009, but reincarcerated two weeks later upon a parole violation. In November 2009, all of theparties appeared in Family Court and stipulated to an order providing that the mother and bothgrandmothers would share joint custody of the child, with the child's primary residence to be withBurns. The order also permitted the father to communicate with the child.
In February 2010, while incarcerated, the father commenced this modification proceedingseeking face-to-face visitation with the child. Following a fact-finding hearing, Family Courtfound that the father had failed to demonstrate a change in circumstances that would warrantmodification of the visitation order and dismissed the petition. The father appeals, and we affirm.[*2]
"As with custody, an existing visitation order will bemodified only if the applicant demonstrates a change in circumstances that reflects a genuineneed for the modification so as to ensure the best interests of the child" (Matter of Taylor v Fry, 63 AD3d1217, 1218 [2009] [citations omitted]; accord Matter of Brown v Erbstoesser, 85 AD3d 1497, 1499[2011]; Matter of Braswell vBraswell, 80 AD3d 827, 829 [2011]). Here, the father's petition alleged only that "[i]twould be in the child's best interest . . . to have visitation so that [they] maycontinue [their] relationship," and the evidence adduced at the hearing fell far short ofestablishing a change of circumstances since the November 2009 order. In that regard, we find nosupport in the record for the father's contention that his relationship with the child had developedsince the prior order. To the contrary, the testimony established that he has never had anysignificant contact with the child. Furthermore, the father continues to be incarcerated, and thefact that he is scheduled to be released from prison in 36 months does not constitute a change incircumstances (compare Matter ofKowatch v Johnson, 68 AD3d 1493, 1494 [2009], lv denied 14 NY3d 704[2010]; Matter of Powell vBlumenthal, 35 AD3d 615, 616 [2006]). Thus, Family Court properly dismissed thepetition (see Matter of Glazier vBrightly, 81 AD3d 1197, 1198 [2011]; Matter of Goldsmith v Goldsmith, 68 AD3d 1209, 1210 [2009]; Matter of Dann v Dann, 51 AD3d1345, 1347 [2008]).
Nor are we persuaded that the father was denied the effective assistance of counsel when hisattorney agreed to waive the initial appearance and proceed directly to a fact-finding hearing. Thefather had ample opportunity to correspond with counsel in advance of the hearing, and nothingin the record suggests that more time was needed to prepare for it. Indeed, counsel activelyparticipated in the hearing, making appropriate objections and conducting a direct and redirectexamination of the witnesses. Under the totality of the circumstances presented herein, we findthat the father was afforded meaningful representation (see Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1434 [2010];Matter of Hurlburt v Behr, 70 AD3d1266, 1267 [2010], lv dismissed 15 NY3d 943 [2010]).
Mercure, J.P., Stein, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.