| Matter of John O. v Michele O. |
| 2013 NY Slip Op 00963 [103 AD3d 939] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of John O., Appellant, v Michele O.,Respondent. (And Two Other Related Proceedings.) |
—[*1] Teresa C. Mulliken, Harpersfield, for respondent. Donald J. Schwartz, Oneonta, attorney for the children.
Lahtinen, J. Appeal from an order of the Family Court of Delaware County(Lambert, J.), entered September 21, 2011, which, among other things, dismissedpetitioner's application, in three proceedings pursuant to Family Ct Act articles 6 and 8,to modify a prior order of custody.
The parties married in 1994, they had four children (born in 1996, 1997, 1999 and2003) and they divorced in 2009. Petitioner (hereinafter the father) currently resides withhis mother in Atlantic Highlands, New Jersey, and respondent (hereinafter the mother)and the children live in Delaware County. They have joint legal custody of the children,with the mother having primary physical custody. An August 2009 order incorporated aJuly 2009 hearing transcript that set forth parenting time for the father to include, amongother things, every other week during summer recess, every other weekend fromSeptember to November and then from April to June, and most of the days of the schoolbreaks from November to March. The meeting place for exchanging the children was setnear the Town of New Paltz, Ulster County, about halfway between the parties'residences.
The father commenced the first of these proceedings in February 2011 seekingphysical custody of the children based upon allegations that the mother was interferingwith his [*2]communication with the children and failingto adhere to the visitation schedule. The mother then filed a family offense petition inMay 2011 alleging aggravated harassment by the father, and Family Court issued atemporary order of protection. The following month the mother brought a violationpetition contending that the father failed to adhere to the temporary order of protection.
A hearing was conducted on the three petitions. Family Court dismissed the father'spetition for a change in custody. The court clarified the father's extensive telephoneprivileges granted in the earlier order by establishing cutoff times of 9:00 p.m. on schoolnights and 10:00 p.m. on weekends, and also incorporated a change in the exchangelocation to much closer to the mother's residence, which was consistent with where thefather had reportedly been traveling for about two years. On the family offense petition,the court determined that the father had harassed the mother and issued a protective orderthrough August 2012. Although finding that the father had also violated the temporaryorder, the court determined that an admonishment not to repeat such conduct was amplepenalty under the circumstances. The father appeals.
We affirm. The father contends that there was insufficient evidence that hecommitted a family offense or that he violated the temporary order of protection. Where,as here, conflicting evidence is presented, we accord deference to the credibilitydeterminations of Family Court (see Matter of Jenna T. v Mark U., 82 AD3d 1512, 1512[2011]). The mother testified about excessive calls from the father, some made very earlyin the morning and others late in the evening, in which he was exceedingly loud andcalled her by derogatory names. She also related instances, when meeting to exchangethe children, where he threatened to kill her while gesturing with his arms. Her testimonywas found credible by Family Court and was sufficient to establish the family offense ofharassment in the second degree by a fair preponderance of the evidence (see Matter of Salazar vMelendez, 97 AD3d 754, 755 [2012], lv denied 20 NY3d 852 [2012]).Family Court's further determination that the father violated the temporary order ofprotection was supported by it crediting the mother's testimony regarding the nature andtime of phone calls made by the father after the temporary order of protection had beenissued.
Family Court did not err in dismissing the father's petition to change physical custodyof the children to him. "An existing custody order will be modified only if there is ashowing of a change in circumstances revealing a real need for the modification in orderto ensure the best interests of the children" (Matter of Mathis v Parkhurst, 23 AD3d 923, 923 [2005][citations omitted]; see Matterof Pecore v Pecore, 34 AD3d 1100, 1101 [2006]). The evidence indicated thatthe children were doing well in school and were actively involved in variousextracurricular activities, had a stable home environment with their mother, andmaintained a good relationship with both of their parents. The father did not meet hisburden of showing a change in circumstances with respect to his application to changephysical custody of the children. Although the parties had not specifically requested thatparameters be established on hours for phone calls and that the exchange location beaddressed, such issues were underlying problems that prompted these petitions and theparties submitted proof with respect thereto at the hearing. Under such circumstances, weare unpersuaded that Family Court erred in addressing those issues (see Matter of Heintz v Heintz,28 AD3d 1154, 1155 [2006]; Matter of Fitzgerald v Fitzgerald, 68 AD2d996, 997 [1979]; compareMatter of Revet v Revet, 90 AD3d 1175, 1176 [2011]).
Peters, P.J., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.