| Matter of Trimble v Trimble |
| 2015 NY Slip Op 01504 [125 AD3d 1153] |
| February 19, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Jon J. Trimble, Appellant, v Jennifer A.Trimble, Respondent. |
Renee J. Albaugh, Delhi, for appellant.
Dennis Laughlin, Cherry Valley, for respondent.
Carol Malz, Oneonta, attorney for the child.
Lahtinen, J.P. Appeal from an order of the Family Court of Otsego County (Burns,J.), entered January 10, 2014, which, among other things, dismissed petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) have onechild together (born in 2008). Pursuant to an October 2010 order, the mother was grantedsole legal custody, the father was permitted supervised visitation for 1
The party seeking to modify an existing custody order must "demonstrate a change incircumstances that reflects a genuine need for the modification so as to ensure the bestinterests of the child" and, where this threshold is met, the court then "proceed[s] to thebest interests [*2]analysis" (Matter of Kashif II. v LatayaKK., 99 AD3d 1075, 1077 [2012] [internal quotation marks and citationsomitted]; see Matter of BarbaraL. v Robert M., 116 AD3d 1101, 1102 [2014]). "Family Court's findings andcredibility determinations are accorded great deference and will not be disturbed unlessthey lack a sound and substantial basis in the record" (Matter of Bronson v Bronson,63 AD3d 1205, 1206 [2009]). The father produced a witness who testified about themother's purported unsanitary living conditions and deficient parenting skills. However,Family Court determined that this witness lacked all credibility and we find no reason todisregard such determination. There was proof of past problems adhering to the visitationschedule, which were caused in part by the father's lack of reliable transportation and asince-expired order of protection. There was also proof that these issues had beenresolved, regular visitation was occurring, and the parties' level of cooperation andcommunication had not significantly changed. Accepting Family Court's credibilitydeterminations, the father failed to prove a change in circumstances (see Matter of Beane v Curtis,112 AD3d 1005, 1005 [2013]; Matter of Bronson v Bronson, 63 AD3d at1206).
The father argues that Family Court erred in not directing that the mother undergo amental health evaluation. The decision whether a mental health evaluation should beconducted of a parent or child "lies within the sound discretion of the court" (Matter of Armstrong v Heilker,47 AD3d 1104, 1105 [2008]; see Matter of Burola v Meek, 64 AD3d 962, 964 [2009]).The father's allegations about the mother pertaining to such issue were largelyunsubstantiated or found to lack credibility. Family Court did not abuse its discretion indenying the father's request for a mental health evaluation of the mother (see Matterof Yetter v Jones, 272 AD2d 654, 657 [2000]; Matter of Thompson vThompson, 267 AD2d 516, 519 [1999]).
Finally, the father contends that Family Court erred in ordering him to participate in adomestic violence monitoring program. It is not clear whether this provision wasintended as a new requirement for the father or simply a reiteration of the requirement inthe October 2010 order that the father follow through on programs recommended in hismental health evaluation. The father acknowledged that a program for domestic violencehad been recommended and he had not yet completed it. Inasmuch as that provision ofthe October 2010 order had not been affected by the March 2013 order, the October 2010order continued to control such issue. We interpret the pertinent language in the January2014 order as surplusage—i.e., simply reiterating the existing obligation from theOctober 2010 order—and, with such interpretation, affirm.
Garry, Devine and Clark, JJ., concur. Ordered that the order is affirmed, withoutcosts.