Roody v. Charles

May 2, 2001
Versions:283 A.D.2d 945
723 N.Y.S.2d 910
2001 N.Y. App. Div. LEXIS 4606

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Family Court properly denied the petition, in which petitioner father sought sole custody of the parties’ child. After an extensive hearing held two years before the instant petition was filed, the court had awarded joint custody to the parties with physical place*946ment to respondent. Petitioner failed to establish a change in circumstances sufficient to warrant a change in the custody of the child (see generally, Eschbach v Eschbach, 56 NY2d 167, 171-172). However, inasmuch as the parties are unable to “put aside their differences for the benefit of the child” (Matter of Buffy E. v Lance C., 227 AD2d 903, 904), the court properly granted the cross petition of respondent seeking sole custody of the child. “The court’s determination is ‘based upon a firsthand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record’ ” (Matter of King v King, 251 AD2d 1028, 1029).

Although the court properly determined that it is in the best interests of the child to award petitioner “substantial” visitation, the court’s visitation schedule actually reduced the regularity and frequency of the visitation set forth in a prior order. The court eliminated the Wednesday and alternate Monday evening visits with petitioner and granted visitation on three weekends per month, from Saturday morning to Sunday afternoon, rather than on alternate weekends, from Friday evening to Sunday evening. We conclude that the record does not support the reduction in the regularity and frequency of the visitation, and we therefore modify the order by adding weekly visitation on Wednesday evenings from 4:00 p.m. to 8:00 p.m. (Appeal from Order of Oswego County Family Court, Hafner, Jr., J. — Custody.) Present — Green, J. P., Hurl-butt, Scudder, Burns and Lawton, JJ.