Opinion
406 CAF 20-00815
07-28-2023
In the Matter of Faith LUCE, Petitioner-Respondent, v. Joseph BUEHLMAN, Sr., Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. TODD G. MONAHAN, LITTLE FALLS, FOR PETITIONER-RESPONDENT. WILLIAM D. BRODERICK, JR., ELMA, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
TODD G. MONAHAN, LITTLE FALLS, FOR PETITIONER-RESPONDENT.
WILLIAM D. BRODERICK, JR., ELMA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND OGDEN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that, among other things, granted in part petitioner mother's amended petition to modify a prior order of custody and visitation by awarding the mother increased visitation.
Where an order of custody and visitation is entered on stipulation, a petitioner seeking to modify the prior order has the "burden of establishing a change in circumstances since the time of the stipulation sufficient to warrant an inquiry into whether a [modification of the prior order] is in the child's best interests" ( Werner v. Kenney , 142 A.D.3d 1351, 1351, 38 N.Y.S.3d 314 [4th Dept. 2016] [internal quotation marks omitted]; see Matter of Jones v. Laird , 119 A.D.3d 1434, 1434, 990 N.Y.S.2d 396 [4th Dept. 2014], lv denied 24 N.Y.3d 908, 2014 WL 5394106 [2014] ). "Upon determining that there has been a change in circumstances, [Family Court] must consider whether the requested modification is in the best interests of the child" ( Matter of Marino v. Marino , 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011] ).
Contrary to the father's contention, the mother established a change in circumstances sufficient to warrant an inquiry into the child's best interests. The mother's testimony at the hearing established that the father had unilaterally arranged for the child's medical appointments to take place during the mother's scheduled visitation, which, in turn, required an adjustment to the visitation schedule, and that the father refused to communicate with her about the child (see generally Werner , 142 A.D.3d at 1351-1352, 38 N.Y.S.3d 314 ).
We further conclude the court's determination that increased visitation for the mother is in the child's best interests is supported by a sound and substantial basis in the record (see Matter of Sims v. Starkey , 158 A.D.3d 1077, 1077, 67 N.Y.S.3d 881 [4th Dept. 2018], lv denied 31 N.Y.3d 906, 2018 WL 2069742 [2018] ).