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

687
CAF 12-02055
PRESENT: CENTRA, J.P., LINDLEY, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF AMI J. FRISBIE,
PETITIONER-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

THOMAS STONE, RESPONDENT-APPELLANT.


JEANNIE D. MICHALSKI, CONFLICT DEFENDER, GENESEO (P. ADAM MILITELLO OF
COUNSEL), FOR RESPONDENT-APPELLANT.

JOHN M. LOCKHART, GENESEO, FOR PETITIONER-RESPONDENT.

ANDREW F. EMBORSKY, ATTORNEY FOR THE CHILD, LIMA.


     Appeal from an order of the Family Court, Livingston County
(Dennis S. Cohen, J.), entered October 19, 2012 in a proceeding
pursuant to Family Court Act article 6. The order terminated the
respondent’s visitation with the subject child.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent father appeals from an order modifying the
parties’ existing custody arrangement by terminating the father’s
visitation rights with the subject child “until further order” of
Family Court. We reject the father’s contention that petitioner
mother failed to establish a change of circumstances sufficient to
justify modification of the prior custody order, which granted
supervised visitation to the father. It is well established that “an
existing visitation order will be modified only if the applicant
demonstrates a change in circumstances that reflects a genuine need
for the modification so as to ensure the best interests of the child”
(Matter of Taylor v Fry, 63 AD3d 1217, 1218; see Matter of
Smith-Gilsey v Grisanti, 111 AD3d 1424, 1424-1425). Here, the mother
established, among other things, that the father allowed a man he met
in jail to have sexual intercourse on multiple occasions with his
older daughter, who was then 16 years old, in return for drugs. The
man in question was convicted of rape in the third degree for having
intercourse with the underage girl, and he testified at the custody
hearing regarding the father’s role in arranging the illegal sexual
activity. The mother also established that the father, a two-time
convicted felon, smoked crack cocaine in the presence of his older
daughter.
                                 -2-                           687
                                                         CAF 12-02055

     Although the father correctly notes that his above-referenced
conduct occurred before the prior custody order was entered, the
mother asserted without contradiction that the father’s conduct was
not known by her or the court when the prior order was entered upon
stipulation. We conclude that the mother’s newfound awareness of the
father’s prior conduct constitutes a sufficient change in
circumstances to modify the father’s visitation rights. In any event,
as the court properly determined, the mother established a change in
circumstances that arose after entry of the prior order. For
instance, the mother established that, since the prior order was
entered, the father experienced visual and auditory hallucinations and
paranoia. We thus conclude that there existed “compelling reasons and
substantial evidence showing” that continued visitation with the
father would be detrimental to the child (Matter of Thaxton v Morro,
222 AD2d 955, 956), and that the court’s determination is in the
child’s best interests.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
