Opinion
533144
04-28-2022
In the Matter of JOSHUA KK., Respondent, v. JAIME LL., Respondent. Attorney for the Child, Appellant.
Carman Garufi, Binghamton, attorney for the child, appellant. Christopher Hammond, Cooperstown, for Joshua KK., respondent.
Carman Garufi, Binghamton, attorney for the child, appellant.
Christopher Hammond, Cooperstown, for Joshua KK., respondent.
Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.
MEMORANDUM AND ORDER
Aarons, J. Appeal from an order of the Family Court of Tioga County (Keene, J.), entered February 17, 2021, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of visitation.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of a child (born in 2010). Pursuant to a January 2019 order, the mother had sole legal and physical custody of the child, with the father having parenting time on Sundays for eight hours. In January 2020, the father commenced this proceeding to modify the January 2019 order. A fact-finding hearing and a Lincoln hearing ensued, after which Family Court granted the petition and awarded the father additional parenting time, including overnight visits. The attorney for the child appeals. We reverse. The father, as the party seeking modification of a prior custody order, had the threshold burden of showing a change in circumstances since the entry of that prior order so as to trigger an examination as to whether modification would serve the child's best interests (see Matter of Rehman v. Sheikh, 152 A.D.3d 910, 911–912, 58 N.Y.S.3d 734 [2017] ; Matter of Gilbert v. Gilbert, 128 A.D.3d 1286, 1287, 10 N.Y.S.3d 354 [2015] ). As a change in circumstances, the father alleged in the petition that he wanted more parenting time with the child so that they could participate in more activities. The father likewise testified at the hearing about the activities that he engaged in with the child during his parenting time and what he would do with her if given more parenting time.
Family Court's decision referenced the child's views and we take this opportunity to reiterate that "a child's right to confidentiality during a Lincoln hearing is of paramount concern and Family Court should, in the future, ensure that what transpires during the course thereof remains confidential" (Matter of John VV. v. Hope WW., 163 A.D.3d 1088, 1091 n., 81 N.Y.S.3d 292 [2018] [internal quotation marks and citations omitted]).
Family Court found that a change in circumstances existed – namely, that the father wanted to have a closer relationship with the child and the amount of parenting time provided in the January 2019 order was insufficient to develop that relationship. Even crediting the father's testimony, the father's mere dissatisfaction with the amount of parenting time provided in the January 2019 order and the desire for more time do not constitute a change in circumstances (see Matter of Clinton v. Backus, 160 A.D.3d 1073, 1075, 73 N.Y.S.3d 294 [2018] ; Matter of Scott LL. v. Rachel MM., 98 A.D.3d 1197, 1198, 951 N.Y.S.2d 254 [2012] ; Matter of Gridley v. Syrko, 50 A.D.3d 1560, 1561, 857 N.Y.S.2d 838 [2008] ). Furthermore, the record fails to show any "new developments or changes that have occurred since the [January 2019] order was entered" ( Matter of Pierre N. v. Tasheca O., 173 A.D.3d 1408, 1408, 105 N.Y.S.3d 135 [2019] [internal quotation marks, brackets and citation omitted], lv denied 34 N.Y.3d 902, 2019 WL 5382487 [2019] ). Accordingly, because the father did not satisfy his threshold burden of establishing a change in circumstances, the modification petition should have been dismissed (see Matter of Gridley v. Syrko, 50 A.D.3d at 1561, 857 N.Y.S.2d 838 ; Matter of Chase v. Benjamin, 44 A.D.3d 1130, 1131–1132, 843 N.Y.S.2d 706 [2007] ).
Egan Jr., J.P., Reynolds Fitzgerald, Fisher and McShan, JJ., concur.
ORDERED that the order is reversed, on the law, without costs, and petition dismissed.