        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

770
CAF 12-01974
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF ROBERT JONES,
PETITIONER-RESPONDENT-APPELLANT,

                    V                              MEMORANDUM AND ORDER

THERESA LAIRD, RESPONDENT-PETITIONER-RESPONDENT.


KATHLEEN P. REARDON, ROCHESTER, FOR PETITIONER-RESPONDENT-APPELLANT.

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
RESPONDENT-PETITIONER-RESPONDENT.

ROBERT L. GOSPER, ATTORNEY FOR THE CHILDREN, CANANDAIGUA.


     Appeal from an order of the Family Court, Ontario County (William
F. Kocher, J.), entered October 9, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, adjudged
that respondent-petitioner shall have sole legal and physical custody
of the parties’ minor children.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner-respondent father contends in this
proceeding pursuant to Family Court Act article 6 that Family Court
erred in refusing to modify the existing custody arrangement by
awarding him sole legal and physical custody of the parties’ minor
children in place of respondent-petitioner mother and in reducing his
weekend access to the children. We reject the father’s contention
that the court erred in determining that he failed to demonstrate a
change in circumstances sufficient to modify the existing custody
order by awarding him custody. “It is well settled that, in seeking
to modify an existing order of custody, ‘[t]he petitioner must make a
sufficient evidentiary showing of a change in circumstances to require
a hearing on the issue whether the existing custody order should be
modified’ ” (Matter of Hughes v Davis, 68 AD3d 1674, 1675). Although
the parties’ existing custody arrangement is based on a stipulation
that was reduced to an order and thus “is entitled to less weight than
a disposition after a plenary trial” (Matter of Alexandra H. v Raymond
B.H., 37 AD3d 1125, 1126 [internal quotation marks omitted]; see
Matter of Brown v Marr, 23 AD3d 1029, 1030), “a court cannot modify
that order unless a sufficient change in circumstances—since the time
of the stipulation—has been established, and then only where a
modification would be in the best interests of the children” (Matter
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                                                         CAF 12-01974

of Hight v Hight, 19 AD3d 1159, 1160 [internal quotation marks
omitted]). Here, the father failed to demonstrate a sufficient change
in circumstances.

     We reject the father’s further contention that the court erred in
granting the mother’s petition seeking to modify the pickup and drop-
off times of his weekend visitation schedule with the children. The
mother made a sufficient showing of changed circumstances for purposes
of adjusting the visitation schedule based on, inter alia, the
parties’ inability to reach an agreement regarding certain aspects of
the children’s visitation schedule, the mother’s work schedule, the
fact that the mother’s former boyfriend was no longer providing
childcare for the children in her home where the Friday afternoon
exchanges occurred, and the extra time required to get the children
prepared for an upcoming week of school on Sunday evening (see Matter
of Stilson v Stilson, 93 AD3d 1222, 1223). Finally, we conclude that
the adjusted visitation schedule is in the best interests of the
children (see generally Matter of Vasquez v Barfield, 81 AD3d 1398,
1399).




Entered:   July 11, 2014                        Frances E. Cafarell
                                                Clerk of the Court
