| Matter of Clarkson v Clarkson |
| 2012 NY Slip Op 06345 [98 AD3d 1208] |
| September 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of Frederick A. Clarkson, Appellant, v Karie A.Clarkson, Respondent. (And Another Related Proceeding.) |
—[*1] Lenore M. LeFevre, Cortland, for respondent. Larisa Obolensky, Delhi, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered September 28, 2011, which, among other things, dismissed petitioner's application, intwo proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofthree children (born in 2003, 2005 and 2006). Following the parties' separation in 2009, theywere awarded joint custody with primary physical custody to the mother, alternate weekendvisitation with the father and shared holidays. Aside from a short-lived attempt to reconcile, theparties abided by the custody and visitation order until November 2010 when the fathercommenced this proceeding seeking custody of the children. Subsequently, the mother also fileda petition seeking modification of the prior order. After a hearing, Family Court dismissed thefather's application for custody but ordered expanded visitation. The father now appeals.
A prior order of custody will be modified only upon a showing of a substantial change incircumstances such that modification is necessary to ensure the best interests of the children (see Matter of Hetherton v Ogden, 79AD3d 1172, 1173 [2010]; Matter of Perry v Perry, 52 [*2]AD3d 906, 906 [2008], lv denied 11 NY3d 707 [2008]; Matter of Kerwin v Kerwin, 39 AD3d950, 951 [2007]). At the hearing, the father testified that he had acquired a certification as amedical assistant and had taken steps to address his substance abuse issues and improve hisrelationship with his children. However, he remained unemployed and was delinquent on hischild support obligation. The other circumstances alleged by the father were essentially nodifferent than at the time of the prior order and did not constitute changes requiring a change incustody to ensure the children's welfare. Accordingly, we find that Family Court properlyconcluded that there was not a change in circumstances sufficient to warrant a change in custody(see Matter of Bronson v Bronson,63 AD3d 1205, 1206 [2009]; Matter of Kerwin v Kerwin, 39 AD3d at 951), but thatmodification of the father's visitation schedule was appropriate based upon the express agreementof all parties that increased visitation between the children and the father was desired.
Mercure, J.P., Rose, Spain and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.