                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: May 5, 2016                         519244
________________________________

In the Matter of REBECCA L.
   SCHMITZ,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

JEREMY W. SCHMITZ,
                    Respondent.
________________________________


Calendar Date:   March 25, 2016

Before:   McCarthy, J.P., Garry, Lynch, Devine and Clark, JJ.

                               __________


     Christopher A. Pogson, Binghamton, for appellant.

     Peter Fee, Vestal, for respondent.

     John M. Scanlon, Binghamton, attorney for the children.

                               __________


Garry, J.

      Appeal from an order of the Family Court of Broome County
(Pines, J.), entered June 11, 2014, which partially granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of two children (born in
2005 and 2007). The parties separated in 2008 and divorced in
2012. Their judgment of divorce incorporated a 2008 consent
order providing for joint legal and physical custody, with the
children residing with each parent for roughly half of each week,
and changeovers occurring on Saturday and Tuesday evenings. The
parties thereafter agreed to informal adjustments to this
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schedule. On most weekdays after school, the children went to
the home of the father and remained there until the mother picked
them up on her way home from work in the evening.

      In August 2013, the mother filed a petition seeking to
modify the schedule. She proposed that the children could be
with her overnight from Sunday evening to Saturday evening, and
with the father from Saturday evening until Sunday evening and
after school each weekday until 5:30 p.m., except Monday, when
they would remain with him until 7:00 p.m. Following a hearing,
Family Court granted primary residence to the mother "for school
purposes only," with custodial periods for the father from
Saturday at 5:30 p.m. to Monday morning at 7:00 a.m. and after
school each weekday until 7:00 p.m., except Friday, when the
mother's custodial time begins at 5:30 p.m. The mother appeals.

      A parent seeking to modify a custody order must demonstrate
that a change in circumstances has occurred that warrants an
inquiry into the children's best interests; once this showing has
been made, "the parent then must show that modification of the
underlying order is necessary to ensure the child's continued
best interests" (Matter of Menhennett v Bixby, 132 AD3d 1177,
1179 [2015]; accord Matter of Ryan v Lewis, 135 AD3d 1135, 1136
[2016]; Matter of Colleen GG. v Richard HH., 135 AD3d 1005, 1007
[2016]). Family Court based its determination that a change in
circumstances had occurred primarily upon the fact that the
children, ages one and three at the time of the 2008 order, were
now attending school. This determination is not challenged; upon
appeal, the mother asserts only that the changes ultimately made
to the schedule were not in the children's best interests.

      Here, the testimony established that both parties were fit
parents who had generally been able to work together successfully
for the benefit of the children. The mother, who resided with
her boyfriend, was employed full time in a prosecutor's office,
while the father, who resided with the paternal grandfather, was
unemployed and therefore available to care for the children after
school. The mother acknowledged that the children had a good
relationship with the father and enjoyed spending time in his
care, but sought to modify the schedule to promote a more
consistent routine for the children. She testified that the
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father often forgot to give medication that had been prescribed
for the older child, and that both children often had not done
their homework when she picked them up after custodial time with
the father. The father was unwilling to give up any overnights
with the children, but testified that he was "[a]bsolutely"
willing to continue to take them after school. He testified that
he helped the older child with her assignments, and that she had
improved in school. The paternal grandmother, who lived
elsewhere but frequently visited the father's home when the
children were present, testified that she had seen the father
playing with the children, helping them with homework, and
preparing meals for them. The father further testified that
specific concerns that the mother had raised regarding prior
hygiene issues at his home had been addressed, and Family Court
credited this testimony. The position of the attorney for the
children was that the children did not wish for any substantial
changes in the schedule, although the attorney also opined that
greater consistency in the school week schedule would benefit
them.

      In a bench decision, Family Court complimented the parties
as "wonderful parents" with an amicable relationship and the
ability to work together for the best interests of their
children. The court determined that only minor changes in the
existing schedule were required, so that the children could spend
school nights at the mother's home while also seeing the father
daily and spending two overnights with him each week. Upon
review, we find that this decision presented a reasonable
compromise between the mother's request for more consistency on
school nights and the father's desire to preserve overnight time
with the children. The record provides the requisite sound and
substantial basis for this aspect of the court's determination
(see Matter of Ryan v Lewis, 135 AD3d at 1137).

      However, there is no such basis for that part of the order
directing the children to remain with the father until 7:00 p.m.
on four school nights each week (see Matter of Stout v Gee, 110
AD3d 1163, 1164 [2013]). In her petition, the mother had asked
to be allowed to pick the children up at 5:30 p.m., with the
exception of Monday nights. At the hearing, she stated that the
children had scheduled activities on other evenings that made a
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later pickup time unfeasible. The father neither opposed this
part of the mother's request nor asked to keep the children
later. Further, it does not appear that he would be able to
transport the children to their extracurricular activities, as he
has no car or driver's license and relies upon the paternal
grandparents for transportation. Family Court apparently
misunderstood the mother's request and, in rendering its
decision, specifically stated that the later time was chosen
because the mother proposed it. There is no record evidence that
the later pickup time is in the children's best interests. We
therefore modify the order to conform with the parties' prior
practice and the mother's request, changing the pickup time from
7:00 p.m. to 5:30 p.m. on Tuesdays, Wednesdays and Thursdays
(compare Ehrenreich v Lynk, 74 AD3d 1387, 1390 [2010]; Matter of
Valentine v Valentine, 3 AD3d 646, 647 [2004]).

     McCarthy, J.P., Lynch, Devine and Clark, JJ., concur.



      ORDERED that the order is modified, on the facts, without
costs, by reversing so much thereof as provided that respondent
would have custodial time with the children until 7:00 p.m. from
Tuesday through Thursday each week; respondent's custodial time
is adjusted as set forth in this Court's decision; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
