Matter of Smith-Gilsey v Grisanti

Matter of Smith-Gilsey v Grisanti 2013 NY Slip Op 07628 Released on November 15, 2013 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on November 15, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CENTRA, CARNI, AND WHALEN, JJ.
1185 CAF 12-01091

[*1]IN THE MATTER OF LINDA SMITH-GILSEY, PETITIONER-APPELLANT,

v

RICHARD D. GRISANTI, RESPONDENT-RESPONDENT. -



IN THE MATTER OF RICHARD D. GRISANTI, PETITIONER-RESPONDENT,

v

LINDA SMITH-GILSEY, RESPONDENT-APPELLANT. (APPEAL NO. 1.)


Appeal from an order of the Family Court, Wyoming County (Michael F. Griffith, J.), entered February 2, 2012 in a proceeding pursuant to Family Court Act article 6. The order, among other things, denied the petition of petitioner-respondent for a modification of custody.


MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
RICHARD D. GRISANTI, RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT PRO SE.
JANE E. MONAGHAN, ATTORNEY FOR THE CHILD, WARSAW.



It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner-respondent mother appeals from two orders that, inter alia, denied her petition for a modification of custody (appeal No. 1) and changed her visitation schedule (appeal No. 2). We affirm the order in each appeal. A parent seeking to modify an existing custody order must demonstrate "a change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child" (Matter of Taylor v Fry, 63 AD3d 1217, 1218; see Matter of Sumner v Lyman, 70 AD3d 1223, 1224, lv denied 14 NY3d 709). Although we agree with the mother that she met her burden of proving a change in circumstances because the parties' relationship had deteriorated and the child had missed numerous visitations with her, we conclude on the record before us " that a change in custody would not be in the best interests of the [child]' " (Matter of Dingeldey v Dingeldey, 93 AD3d 1325, 1326). Furthermore, the court properly exercised its discretion in crafting a visitation schedule that was in the child's best interests (see Matter of Fox v Fox, 93 AD3d 1224, 1225). [*2]

Contrary to the mother's contention, by requiring respondent-petitioner father to post an undertaking in a specified amount, the court properly imposed a meaningful sanction based on the father's failure to comply with orders concerning her visitation rights, to ensure that visitation occurred (see generally Matter of Mason-Crimi v Crimi, 94 AD3d 1572, 1573-1574; Schoonheim v Schoonheim, 92 AD2d 474, 474-475). Finally, we reject the mother's contention that the court lacked jurisdiction over the instant matters, inasmuch as the father resides in Wyoming County (see Family Ct Act § 171).
Entered: November 15, 2013
Frances E. Cafarell
Clerk of the Court