Opinion
2013-11-15
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.
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.
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 A.D.3d 1217, 1218, 880 N.Y.S.2d 721;see Matter of Sumner v. Lyman, 70 A.D.3d 1223, 1224, 895 N.Y.S.2d 576,lv. denied14 N.Y.3d 709, 2010 WL 1756537). 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 A.D.3d 1325, 1326, 940 N.Y.S.2d 760). 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 A.D.3d 1224, 1225, 940 N.Y.S.2d 719).
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 A.D.3d 1572, 1573–1574, 942 N.Y.S.2d 755;*871Schoonheim v. Schoonheim, 92 A.D.2d 474, 474–475, 459 N.Y.S.2d 56). 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).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.