                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 19, 2015                   518342
________________________________

In the Matter of JON J.
   TRIMBLE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

JENNIFER A. TRIMBLE,
                    Respondent.
________________________________


Calendar Date:   January 15, 2015

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

                             __________


     Renee J. Albaugh, Delhi, for appellant.

     Dennis Laughlin, Cherry Valley, for respondent.

     Carol Malz, Oneonta, attorney for the child.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Family Court of Otsego County
(Burns, J.), entered January 10, 2014, which, among other things,
dismissed petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) have one child together (born in 2008).
Pursuant to an October 2010 order, the mother was granted sole
legal custody, the father was permitted supervised visitation for
1½ hours on Saturdays, and the father was directed to receive a
mental health evaluation and comply with treatment recommended by
the evaluation. In March 2013, the earlier order was modified
only to the extent of expanding the father's visitation to make
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it unsupervised on alternating Fridays and Saturdays, as well as
such further times as the parties agreed. The father commenced
this proceeding six months later, in September 2013, seeking sole
legal custody and primary physical placement of the child; a
position he modified at the fact-finding hearing to joint legal
custody with "consistent visitation." Family Court dismissed the
petition and ordered the father to participate in a domestic
violence monitoring program. The father appeals.

      The party 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" and, where this threshold is met, the court then
"proceed[s] to the best interests analysis" (Matter of Kashif II.
v Lataya KK., 99 AD3d 1075, 1077 [2012] [internal quotation marks
and citation omitted]; see Matter of Barbara L. v Robert M., 116
AD3d 1101, 1102 [2014]). "Family Court's findings and
credibility determinations are accorded great deference and will
not be disturbed unless they lack a sound and substantial basis
in the record" (Matter of Bronson v Bronson, 63 AD3d 1205, 1206
[2009]). The father produced a witness who testified about the
mother's purported unsanitary living conditions and deficient
parenting skills. However, Family Court determined that this
witness lacked all credibility and we find no reason to disregard
such determination. There was proof of past problems adhering to
the visitation schedule, which were caused in part by the
father's lack of reliable transportation and a since-expired
order of protection. There was also proof that these issues had
been resolved, regular visitation was occurring, and the parties'
level of cooperation and communication had not significantly
changed. Accepting Family Court's credibility determinations,
the father failed to prove a change in circumstances (see Matter
of Beane v Curtis, 112 AD3d 1005, 1005 [2013]; Matter of Bronson
v Bronson, 63 AD3d at 1206).

      The father argues that Family Court erred in not directing
that the mother undergo a mental health evaluation. The decision
whether a mental health evaluation should be conducted of a
parent or child "lies within the sound discretion of the court"
(Matter of Armstrong v Heilker, 47 AD3d 1104, 1105 [2008]; see
Matter of Burola v Meek, 64 AD3d 962, 964 [2009]). The father's
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allegations about the mother pertaining to such issue were
largely unsubstantiated or found to lack credibility. Family
Court did not abuse its discretion in denying the father's
request for a mental health evaluation of the mother (see Matter
of Yetter v Jones, 272 AD2d 654, 657 [2000]; Matter of Thompson v
Thompson, 267 AD2d 516, 519 [1999]).

      Finally, the father contends that Family Court erred in
ordering him to participate in a domestic violence monitoring
program. It is not clear whether this provision was intended as
a new requirement for the father or simply a reiteration of the
requirement in the October 2010 order that the father follow
through on programs recommended in his mental health evaluation.
The father acknowledged that a program for domestic violence had
been recommended and he had not yet completed it. Inasmuch as
that provision of the October 2010 order had not been affected by
the March 2013 order, the October 2010 order continued to control
such issue. We interpret the pertinent language in the January
2014 order as surplusage – i.e., simply reiterating the existing
obligation from the October 2010 order – and, with such
interpretation, affirm.

     Garry, Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
