State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 19, 2015 518342 

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In the Matter of JON J.

TRIMBLE,

Appellant,

v MEMORANDUM AND ORDER

JENNIFER A. TRIMBLE,

Respondent.

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Calendar Date: January 15, 2015

Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.

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Renee J. Albaugh, Delhi, for appellant.

Dennis Laughlin, Cherry Valley, for respondent.

Carol Malz, Oneonta, attorney for the child.

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Lahtinen, J.P.

Appeal from an order of the Family Court of Otsego County

(Burns, J.), entered January 10, 2014, which, among other things,

dismissed petitioner's application, in a proceeding pursuant to

Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) have one child together (born in 2008). 

Pursuant to an October 2010 order, the mother was granted sole

legal custody, the father was permitted supervised visitation for

11⁄2 hours on Saturdays, and the father was directed to receive a

mental health evaluation and comply with treatment recommended by

the evaluation. In March 2013, the earlier order was modified

only to the extent of expanding the father's visitation to make
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it unsupervised on alternating Fridays and Saturdays, as well as

such further times as the parties agreed. The father commenced

this proceeding six months later, in September 2013, seeking sole

legal custody and primary physical placement of the child; a

position he modified at the fact-finding hearing to joint legal

custody with "consistent visitation." Family Court dismissed the

petition and ordered the father to participate in a domestic

violence monitoring program. The father appeals.

The party 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" and, where this threshold is met, the court then

"proceed[s] to the best interests analysis" (Matter of Kashif II.

v Lataya KK., 99 AD3d 1075, 1077 [2012] [internal quotation marks

and citation omitted]; see Matter of Barbara L. v Robert M., 116

AD3d 1101, 1102 [2014]). "Family Court's findings and

credibility determinations are accorded great deference and will

not be disturbed unless they lack a sound and substantial basis

in the record" (Matter of Bronson v Bronson, 63 AD3d 1205, 1206

[2009]). The father produced a witness who testified about the

mother's purported unsanitary living conditions and deficient

parenting skills. However, Family Court determined that this

witness lacked all credibility and we find no reason to disregard

such determination. There was proof of past problems adhering to

the visitation schedule, which were caused in part by the

father's lack of reliable transportation and a since-expired

order of protection. There was also proof that these issues had

been resolved, regular visitation was occurring, and the parties'

level of cooperation and communication had not significantly

changed. Accepting Family Court's credibility determinations,

the father failed to prove a change in circumstances (see Matter

of Beane v Curtis, 112 AD3d 1005, 1005 [2013]; Matter of Bronson

v Bronson, 63 AD3d at 1206). 

The father argues that Family Court erred in not directing

that the mother undergo a mental health evaluation. The decision

whether a mental health evaluation should be conducted of a

parent or child "lies within the sound discretion of the court"

(Matter of Armstrong v Heilker, 47 AD3d 1104, 1105 [2008]; see

Matter of Burola v Meek, 64 AD3d 962, 964 [2009]). The father's
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allegations about the mother pertaining to such issue were

largely unsubstantiated or found to lack credibility. Family

Court did not abuse its discretion in denying the father's

request for a mental health evaluation of the mother (see Matter

of Yetter v Jones, 272 AD2d 654, 657 [2000]; Matter of Thompson v

Thompson, 267 AD2d 516, 519 [1999]). 

Finally, the father contends that Family Court erred in

ordering him to participate in a domestic violence monitoring

program. It is not clear whether this provision was intended as

a new requirement for the father or simply a reiteration of the

requirement in the October 2010 order that the father follow

through on programs recommended in his mental health evaluation. 

The father acknowledged that a program for domestic violence had

been recommended and he had not yet completed it. Inasmuch as

that provision of the October 2010 order had not been affected by

the March 2013 order, the October 2010 order continued to control

such issue. We interpret the pertinent language in the January

2014 order as surplusage – i.e., simply reiterating the existing

obligation from the October 2010 order – and, with such

interpretation, affirm.

Garry, Devine and Clark, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court