| Matter of Bacchus v McGregor |
| 2017 NY Slip Op 01352 [147 AD3d 1049] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Sylvanus Bacchus, Appellant, v NadineMcGregor, Respondent. |
Jeffrey C. Bluth, New York, NY, for appellant.
Robert Marinelli, New York, NY, for respondent.
Karen P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet Neustaetter of counsel),attorney for the child.
Appeal by the father from an order of the Family Court, Kings County (Anthony Cannataro,J.), dated August 18, 2015. The order granted the mother's motion, made at the close of thefather's case, to dismiss his petition to modify an order of custody and visitation of that court(Anne G. Feldman, J.H.O.) dated March 31, 2009.
Ordered that the order dated August 18, 2015, is affirmed, without costs ordisbursements.
A final order of custody and visitation dated March 31, 2009, awarded custody of the subjectchild to the mother with visitation to the father. In March 2013, the father filed a petition tomodify that order so as to award him custody. The Family Court conducted a hearing and, at theconclusion of the father's case, granted the mother's motion to dismiss his petition for failure toestablish a prima facie case.
"An order of custody or visitation may be modified only upon a showing that there has beena subsequent change of circumstances such that modification is required to ensure the bestinterests of the child" (Matter of C.H. vF.M., 130 AD3d 1028, 1028 [2015]; see Matter of Cruz v Figueroa, 132 AD3d 669 [2015]; Vollkommer v Vollkommer, 101 AD3d1108 [2012]; Matter ofAronowich-Culhane v Fournier, 94 AD3d 1114, 1115 [2012]). In deciding a motion todismiss a petition for failure to establish a prima facie case, the court must accept the petitioner'sevidence as true and afford the petitioner the benefit of every favorable inference that canreasonably be drawn therefrom (see Matter of Cruz v Figueroa, 132 AD3d at 669;Matter of C.H. v F.M., 130 AD3d at 1028; Matter of Kerwin v Kerwin, 39 AD3d 950, 951 [2007]). "Thequestion of credibility is irrelevant, and should not be considered" (Gonzalez v Gonzalez,262 AD2d 281, 282 [1999]; see Matterof Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2010]). Here, accepting his evidence astrue and affording him the benefit of every reasonable inference, the father failed to presentevidence sufficient to establish a prima facie case of a change of circumstances which mightwarrant modification of the underlying custody and visitation order (see Matter of Cruz vFigueroa, 132 AD3d at 669; Matter of C.H. v F.M., 130 AD3d at 1028). The [*2]Family Court, therefore, properly granted the mother's motion,made at the close of the father's case, to dismiss the petition to modify that order.
The father's remaining contentions are without merit. Mastro, J.P., Balkin, Cohen andBrathwaite Nelson, JJ., concur.