                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 3, 2015                     518281
____________________________________

In the Matter of LISA M.
   CASWELL,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

THOMAS M. CASWELL,
                      Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:   October 15, 2015

Before:   Garry, J.P., Egan Jr., Rose and Clark, JJ.

                               __________


     Emily Karr-Cook, Elmira, for appellant.

     Paul R. Corradini, Elmira, for respondent.

     Elizabeth J. Mannion, Elmira, attorney for the children.

                               __________


Clark, J.

      Appeal from an order of the Family Court of Chemung County
(Hayden, J.), entered December 17, 2013, which, among other
things, in three proceedings pursuant to Family Ct Act article 6,
dismissed the petitions at the close of petitioner's proof.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the divorced parents of three
children (born in 1994, 2002 and 2006). In August 2010, the
parties stipulated to a custody and visitation order which, among
other things, granted the parties joint legal custody of the
children with the father maintaining primary physical custody.
                               -2-                518281

As a result of a modification petition filed by the father, in
August 2012 the parties stipulated to a modified custody and
visitation order that granted sole legal and primary physical
custody to the father and reduced the mother's visitation with
the children. In January 2013, the mother commenced the first of
the instant proceedings, pursuant to Family Ct Act article 6,
seeking to modify the prior order by awarding the parties joint
legal custody and increasing her visitation – specifically,
permitting her to have overnight visits – based on, among other
things, concerns over corporal punishment, parental alienation
and sexualized behavior of the youngest child. The mother filed
a second modification petition in February 2013 seeking joint
legal custody and sole physical custody claiming a change in
circumstances based on the middle and youngest children's
behavioral and academic difficulties, among other things. The
mother then filed a third petition in July 2013.1 At the close
of the mother's proof at a combined fact-finding hearing, Family
Court granted the father's motion to dismiss the petitions
finding that the mother failed to set forth a sufficient change
in circumstances. The mother appeals.

      We reverse. "In determining the father's motion to
dismiss, Family Court was required to accept the mother's
evidence as true, afford her the benefit of every favorable
inference and resolve all credibility questions in her favor"
(Matter of Nikki O. v William N., 64 AD3d 938, 939 [2009], lv
dismissed 13 NY3d 825 [2009] [citations omitted]; see CPLR 4401;
Family Ct Act § 165 [a]; Matter of Bouwens v Bouwens, 86 AD3d
731, 732 [2011]). To survive a motion to dismiss, the mother was
required to establish a change in circumstances warranting an
inquiry into whether the best interests of the children would be
served by modifying the existing custody arrangement (see Matter
of Fountain v Fountain, 130 AD3d 1107, 1107-1108 [2015]; Matter
of Dobies v Brefka, 83 AD3d 1148, 1149 [2011]). With this
standard in mind, we note that "less weight is afforded an
existing arrangement which is based upon a stipulation, as here"


     1
        Although not distinguished as such by Family Court, the
third proceeding appears to be one alleging a violation of the
prior order.
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(Matter of Miosky v Miosky, 33 AD3d 1163, 1166-1167 [2006];
accord Matter of Hayward v Thurmond, 85 AD3d 1260, 1261 [2011]).

      The proof at the fact-finding hearing demonstrated that,
since the August 2012 stipulated order, the youngest child has
been diagnosed with attention deficit hyperactivity disorder, a
diagnosis that has contributed to social and academic issues that
persist despite medication. The middle child, too, has
experienced a deterioration of academic performance. Further
proof supported the mother's allegations of the father's
interference with her visitation with the two younger children,
as well as corporal punishment of the youngest child.
Additionally, testimony from the mother's psychotherapist
demonstrated that the mother's mental health had stabilized.
Thus, upon our review of the record, we conclude that, taken
together, the foregoing establishes a change in circumstances
sufficient to satisfy the mother's threshold burden warranting a
review of the issue of custody to ensure the continued best
interests of the children (see Matter of Slovak v Slovak, 77 AD3d
1089, 1090-1091 [2010]; Matter of Gorham v Gorham, 56 AD3d 985,
986-987 [2008]). Accordingly, Family Court erred in granting the
father's motion to dismiss at the close of the mother's proof.

     Garry, J.P., Egan Jr. and Rose, JJ., concur.


      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Chemung County
for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
