| Matter of Repsher v Finney |
| 2013 NY Slip Op 07777 [111 AD3d 1074] |
| November 21, 2013 |
| Appellate Division, Third Department |
| In the Matter of Milton H. Repsher Jr., Appellant, v TraceyFinney, Respondent. |
—[*1] Norbert A. Higgins, Binghamton, for respondent. Scott B. Nadel, Binghamton, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Broome County(Connerton, J.), entered May 7, 2012, which dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for modification of a prior order ofcustody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a son born in 1996. By order entered October 10, 2000, the parties stipulatedthat they would share joint custody of the child with primary physical custody to themother and substantial visitation to the father. In 2009, the father, who by then hadrelocated from Broome County to Pennsylvania, commenced a modification proceedingseeking primary physical custody of his son. Family Court dismissed the father'sapplication, finding that he had failed to demonstrate a sufficient change incircumstances to warrant modification of the prior order.[FN1][*2]
In 2011, the father commenced this modificationproceeding—again seeking primary physical custody of his son. Following ahearing,[FN2]Family Court orally conveyed its inclination to dismiss the father's application, notingthat a written decision would be forthcoming. In the interim, and based upon certaincomments made by Family Court from the bench, the father moved to reopen the proof.Family Court denied the father's motion to reopen and dismissed the modificationproceeding, prompting this appeal.[FN3]
We affirm. "The case law makes clear that an existing custody order will be modifiedonly when the party seeking the modification demonstrates a sufficient change incircumstances since the entry of the prior order to warrant modification thereof in thechild's best interest" (Matter ofHamilton v Anderson, 99 AD3d 1077, 1078 [2012] [internal quotation marksand citations omitted]; seeMatter of Hayward v Campbell, 104 AD3d 1000, 1000 [2013]; Matter of Clarkson v Clarkson,98 AD3d 1208, 1209 [2012]). "[W]hile not dispositive, the express wishes of [an]older and more mature child[ ] can support the finding of a change in circumstances" (Matter of Burch v Willard, 57AD3d 1272, 1273 [2008]).
Here, the father's modification petition was based, in large measure, upon the child'sdesire to live with him in Pennsylvania.[FN4]To be sure, the wishes of the child, who was almost 15 years old at the time of thehearing, are worthy of serious consideration. However, absent other additional factorsmilitating in favor of altering the longstanding and otherwise successful custodialarrangement present here (seeMatter of Casarotti v Casarotti, 107 AD3d 1336, 1339 [2013], lv denied22 NY3d 852 [2013]; Matter ofCole v Nofri, 107 AD3d 1510, 1511-1512 [2013]; Matter of Dorsa v Dorsa, 90AD3d 1046, 1047 [2011]; Matter of Burch v Willard, 57 AD3d at 1273;Matter of Oddy v Oddy, 296 AD2d 616, 617-618 [2002]), we are not inclined todisturb Family Court's dismissal of the father's application—particularly given thatthe existing custodial arrangement affords the child with access to and the support of twofit and loving parents. The father's remaining contentions, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Lahtinen, J.P., McCarthy and Spain, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: In so doing, FamilyCourt noted that "[t]he parents are the ideal joint custodians. They are civil, mature,polite and caring parents who communicate about their son despite their own personaldifferences."
Footnote 2: Family Court alsoconducted a Lincoln hearing.
Footnote 3: The father's subsequentmotion to this Court for a change in the primary physical residence of the child pendingappeal was denied.
Footnote 4: Although the father alsosuggested that the mother was not sufficiently involved in the child's educational planand provided inadequate supervision for the child on the evenings that she worked, theseallegations are not borne out by the record.