                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 25, 2015                      517720
________________________________

In the Matter of EVERETT C.
   McINTOSH,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

CRYSTAL L. CLARY,
                    Respondent.
________________________________


Calendar Date:    June 3, 2015

Before:    Peters, P.J., McCarthy, Egan Jr. and Rose, JJ.

                              __________


     Luciano J. Lama, Ithaca, for appellant.

     Pamela Bleiwas, Ithaca, attorney for the children.

                              __________


Rose, J.

      Appeal from an order of the Family Court of Tompkins County
(Sherman, J.), entered September 25, 2013, which, in a proceeding
pursuant to Family Ct Act article 6, granted respondent's motion
to dismiss the petition.

      The parties are the parents of four children, born in 2005,
2006, 2008 and 2009. Since 2010, petitioner (hereinafter the
mother) has had sole custody of the children pursuant to an order
that permitted respondent (hereinafter the father), who was
incarcerated, to have telephonic contact with the children. In
2012, after a fact-finding and Lincoln hearing, Family Court
determined that the telephone calls were emotionally distressing
to the children and granted the mother's petition to modify the
order by limiting the father's contact to monthly, monitored
                               -2-                517720

written communication with the two oldest children.1 Ten months
later, the father commenced this proceeding to modify the 2012
order, seeking prison visitation and reinstating telephonic
contact with the two oldest children. Family Court granted the
mother's motion to dismiss the petition for failure to allege a
change in circumstances. The father now appeals.2

      We affirm. As the party seeking to modify a recent,
existing visitation order, "the father was required to provide
sufficient evidence in support of the petition to show that there
had been a change in circumstances demonstrating a real need for
a change to ensure the children's best interests" (Matter of Hall
v Hall, 61 AD3d 1284, 1285 [2009]; see Matter of Ruple v Cullen,
115 AD3d 1123, 1123 [2014]). The only changes in circumstances
alleged in the father's petition were that he had received a
certificate for attending substance abuse meetings and positive
inmate progress reports and completed vocational training, and
that his request for the children to participate in a prison
program had been denied. Even accepting these allegations as
true, they do not set forth a change in circumstances that would
warrant the relief sought (see Matter of Januszka v Januszka, 90
AD3d 1253, 1254 [2011]). The bare fact that the father had
availed himself of prison services did not require a
reexamination of the childrens' best interests, particularly
where the changes alleged do not address their emotional reaction
to telephonic communication from the father, which was the reason
for limiting contact in the 2012 order. Moreover, although the
father was allowed monthly communication with the two oldest
children, he had written to them on only two occasions in the 10
months that had elapsed between the 2012 order and this
proceeding. Given the circumstances, Family Court did not err in
dismissing the petition without an evidentiary hearing (see


     1
        We subsequently affirmed this order (Matter of Clary v
McIntosh, 117 AD3d 1285, 1286 [2014]).
     2
        Inasmuch as the father has been released to parole
supervision, his request for visitation at the prison is moot
(see Matter of Samantha WW. v Gerald XX., 107 AD3d 1313, 1315
[2013]).
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Matter of Marquis v Washington, 86 AD3d 753, 754 [2011]; Matter
of Heater v Heater, 81 AD3d 1017, 1017 [2011]).

     Peters, P.J., McCarthy and Egan Jr., JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
