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In the Matter of Jason S. v. Christina A. Bowers

State of New York Supreme Court, Appellate Division Third Judicial Department


December 6, 2012

IN THE MATTER OF JASON S. BOWERS, APPELLANT,
v.
CHRISTINA A. BOWERS, RESPONDENT.

Appeal from an order of the Family Court of Schenectady County (Clark, J.), entered March 6, 2012, which, among other things, dismissed petitioner's applications, in two proceedings pursuant to Family Ct Act article 6, for modification of a prior order of custody and visitation.

The opinion of the court was delivered by: Garry, J.

MEMORANDUM AND ORDER

(And Another Related Proceeding.)

Calendar Date: November 13, 2012

Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Garry, JJ.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a daughter (born in 1999) and a son (born in 2002). In an April 2011 consent order, the mother was awarded physical custody of the children and the father was granted visitation as the parties could agree. The father commenced these proceedings five months later, seeking to enforce a verbal visitation arrangement and to modify the written order to set a visitation schedule. Family Court dismissed both petitions at the conclusion of the father's proof. He now appeals, and we affirm.

Upon his application for modification of the prior custody order, the father was obliged to "demonstrate, first, a change in circumstances occurring after issuance of the order sought to be modified and, second, that modification of the previous order is necessary to ensure the children's best interests" (Matter of Ildefonso v Brooker, 94 AD3d 1344, 1344 [2012]; see Matter of Bond v MacLeod, 83 AD3d 1304, 1305 [2011]). Shortly before the custody order was issued, the father relocated to Vermont, resulting in difficulties with his visitation. Specifically, he could not comfortably drive that distance due to a disability, and thus there were transportation issues following his move. The children spent the summer of 2011 with him, and although the mother was unwilling to drive the children to meet the father, she expressed her willingness to allow further visitation in the local area, or when the father could provide transportation. As the father's relocation predated the entry of the current order and therefore "cannot serve as a basis for concluding that a change in circumstances has occurred," Family Court properly dismissed his modification petitions (Matter of Bouwens v Bouwens, 86 AD3d 731, 732 [2011]; see Matter of Bond v Bond, 93 AD3d 1100, 1101 [2012]). Further, the father was only entitled to visitation as "agreed upon by the parties." Thus, his remaining contention that the mother violated the custody order by declining some of his visitation requests is without merit (see Matter of Miller v Miller, 77 AD3d 1064, 1065 [2010], lv dismissed and denied 16 NY3d 737 [2011]).

Mercure, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur.

ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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