                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 8, 2015                   518482
________________________________

In the Matter of DAWN TYREL,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

PRESTON TYREL,
                    Respondent.
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Calendar Date:   September 18, 2015

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

                             __________


     Justin C. Brusgul, Voorheesville, for appellant.

     Susan J. Civic, Saratoga Springs, for respondent.

      Nicole R. Rodgers, Saratoga Springs, attorney for the
child.

                             __________


Garry, J.P.

      Appeal from an order of the Family Court of Saratoga County
(Jensen, J.), entered January 29, 2014, which dismissed
petitioner's application, in a proceeding 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 child (born in
2009). Pursuant to a 2011 order, the parties have joint legal
custody of the child and the father has primary physical custody,
with daily Skype or telephone contact to the mother, who lives in
Pennsylvania, and visitation when she is in New York. In July
2013, the mother commenced this proceeding seeking primary
physical custody of the child. Following a hearing, Family Court
                              -2-                518482

found that the mother failed to make the required showing of a
change in circumstances and dismissed the petition. The mother
now appeals.

      "In any modification proceeding, the threshold issue is
whether there has been a change in circumstances since the prior
custody order significant enough to warrant a review of the issue
of custody to ensure the continued best interests of the
children" (Matter of Patricia P. v Dana Q., 106 AD3d 1386, 1386
[2013] [citations omitted]; see Matter of Martin v Mills, 94 AD3d
1364, 1364-1365 [2012]). The mother alleged in her petition that
the father was homeless and that she was not being provided with
daily phone or Skype contact with the child as provided for in
the custody order. At the hearing, however, the mother conceded
that the father was not homeless and testified that she was
currently being provided daily phone access to the child. The
father, who has epilepsy, testified that he lives with his mother
and two of his siblings, ages 9 and 12. He also testified that
the child was attending preschool and was enrolled in the Head
Start program. Although the mother expressed concerns that the
father's medical condition prevented him from properly caring for
the child, the record reflects that the condition was known at
the time the current custody order was entered, and the mother
did not present any evidence that the father's ability to care
for the child has changed since that time. In short, the mother
did not establish the existence of a change in circumstances, and
Family Court's dismissal of the petition was proper (see Matter
of John O. v Michele O., 103 AD3d 939, 941 [2013]; Matter of
Clarkson v Clarkson, 98 AD3d 1208, 1209 [2012]).

     Rose, Lynch and Devine, JJ., concur.
                        -3-                  518482

ORDERED that the order is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
