SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

687 

CAF 12-02055 

PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.

 

 

IN THE MATTER OF AMI J. FRISBIE, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

THOMAS STONE, RESPONDENT-APPELLANT. 

 

JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO (P. ADAM MILITELLO OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

JOHN M. LOCKHART, GENESEO, FOR PETITIONER-RESPONDENT. 

ANDREW F. EMBORSKY, ATTORNEY FOR THE CHILD, LIMA. 

 

Appeal from an order of the Family Court, Livingston County

(Dennis S. Cohen, J.), entered October 19, 2012 in a proceeding

pursuant to Family Court Act article 6. The order terminated the

respondent’s visitation with the subject child. 

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 modifying the

parties’ existing custody arrangement by terminating the father’s

visitation rights with the subject child “until further order” of

Family Court. We reject the father’s contention that petitioner

mother failed to establish a change of circumstances sufficient to

justify modification of the prior custody order, which granted

supervised visitation to the father. It is well established that “an

existing visitation order will be modified only if the applicant

demonstrates 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

Smith-Gilsey v Grisanti, 111 AD3d 1424, 1424-1425). Here, the mother

established, among other things, that the father allowed a man he met

in jail to have sexual intercourse on multiple occasions with his

older daughter, who was then 16 years old, in return for drugs. The

man in question was convicted of rape in the third degree for having

intercourse with the underage girl, and he testified at the custody

hearing regarding the father’s role in arranging the illegal sexual

activity. The mother also established that the father, a two-time

convicted felon, smoked crack cocaine in the presence of his older

daughter. 
-2- 687 

CAF 12-02055 

Although the father correctly notes that his above-referenced

conduct occurred before the prior custody order was entered, the 

mother asserted without contradiction that the father’s conduct was

not known by her or the court when the prior order was entered upon

stipulation. We conclude that the mother’s newfound awareness of the

father’s prior conduct constitutes a sufficient change in

circumstances to modify the father’s visitation rights. In any event,

as the court properly determined, the mother established a change in

circumstances that arose after entry of the prior order. For

instance, the mother established that, since the prior order was

entered, the father experienced visual and auditory hallucinations and

paranoia. We thus conclude that there existed “compelling reasons and

substantial evidence showing” that continued visitation with the

father would be detrimental to the child (Matter of Thaxton v Morro,

222 AD2d 955, 956), and that the court’s determination is in the

child’s best interests. 

Entered: June 20, 2014 Frances E. Cafarell

Clerk of the Court