State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 25, 2015 519135 

____________________________________

In the Matter of MICHELLE A.

JONES,

Respondent,

v MEMORANDUM AND ORDER

JOHNNIE MOORE,

Appellant.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: June 4, 2015

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

__________

Ciano J. Lama, Ithaca, for appellant.

Francisco Berry, Ithaca, for respondent.

Donna Chin, Ithaca, attorney for the child. 

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Clark, J.

Appeal from an order of the Family Court of Chemung County

(Hayden, J.), entered May 16, 2014, which, among other things,

dismissed respondent's applications, in two proceedings pursuant

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

Petitioner (hereinafter the mother) and respondent

(hereinafter the father) are the parents of a daughter (born in

1999). An August 2010 Family Court order awarded sole custody of

the child to the mother and provided the father with visitation

every Wednesday evening and an overnight visitation every

Saturday. In May 2013, the mother commenced a proceeding seeking
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modification of the prior custody order to the extent that the

father no longer have an overnight visitation with the child. 

The father then commenced a modification proceeding seeking more

visitation time with the child and, subsequently, commenced

another modification proceeding seeking sole custody. Following

a fact-finding hearing and a Lincoln hearing with the child,

Family Court determined that neither party established that there

had been any change in circumstances sufficient to warrant

modification of the prior custody order and, accordingly,

dismissed the petitions. The father now appeals and contends

that Family Court erred in not affording proper weight to the

child's expressed desire to reside with him half of the time. We

disagree.

"A parent seeking to modify an existing custody order bears

the burden of demonstrating a sufficient change in circumstances

since the entry of the prior order to warrant modification

thereof in the child's best interests" (Matter of Bailey v Blair,

127 AD3d 1274, 1275 [2015] [internal quotation marks, brackets

and citations omitted]; see Matter of Eller v Eller, 126 AD3d

1242, 1242 [2015]; Matter of Kent v Ordway, 125 AD3d 1203, 1203

[2015]). Further, it is well settled that, "while not

dispositive, the express wishes of [an] older and more mature

child[] can support the finding of a change in circumstances"

(Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]

[internal quotation marks and citation omitted]; see Matter of

Repsher v Finney, 111 AD3d 1074, 1075 [2013]; Matter of Casarotti

v Casarotti, 107 AD3d 1336, 1337 [2013], lv denied 22 NY3d 852

[2013]).

Here, at an initial appearance in November 2013, the

attorney for the child indicated that, at the time that the

father sought sole custody of the child, he was in support of

that request based upon the child's desire to reside with the

father. The attorney for the child indicated, however, that,

since that time, the child had changed her mind and recognized

that her desire to live with the father stemmed from a

disagreement that she had with the mother regarding discipline;

thus, the child made it clear that she wanted to continue

residing with her mother and visit the father during the times

set forth in the August 2010 custody order. At the first day of
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the fact-finding hearing in May 2014, the attorney for the child

read a letter from the child in which she stated that she wished

"to live with both [her] mother and father." Family Court

thereafter held a Lincoln hearing, following which it told the

parties that it was troubled that the child seemed to have a

prepared speech at the hearing. Based upon the foregoing, we

find that, "absent other additional factors militating in favor

of altering" the prior custody order (Matter of Repsher v Finney,

111 AD3d at 1075; see e.g. Matter of Meier v Meier, 79 AD3d 1295,

1295 [2010]), Family Court did not err in finding that the father

failed to establish a change in circumstances sufficient to

warrant modification of the prior custody order (see Matter of

Repsher v Finney, 111 AD3d at 1075).1

The father's further assertion that Family Court erred in

referencing, sua sponte, his criminal record is unpreserved for

our review and, in any event, we find that any error was harmless

(see Matter of Justin EE., 153 AD2d 772, 774 [1989], lv denied 75

NY2d 704 [1990]). The father's remaining contentions, to the

extent that they are preserved, have been reviewed and found to

be lacking in merit.

Garry, J.P., Rose and Devine, JJ., concur.

1 The father also asserts that, since entry of the prior

custody order, "the mother interfered" with his visitations and

that this fact, coupled with the child's expressed wish,

established a change in circumstances. The father, however, did

not testify to any such interference at the fact-finding hearing

and, further, we find that his claim is belied by the record

(compare Matter of Parchinsky v Parchinsky, 114 AD3d at 1041).
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court