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

672
CAF 12-00645
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF TIMOTHY J. DUBIEL,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STACY L. SCHAEFER, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


MICHAEL J. PULVER, NORTH SYRACUSE, FOR RESPONDENT-APPELLANT.


     Appeal from an order of the Family Court, Onondaga County (Gina
M. Glover, R.), entered June 23, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted petitioner
increased visitation.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the fourth ordering
paragraph in its entirety, and by directing in the fifth ordering
paragraph that respondent, rather than petitioner, shall have
parenting time on Labor Day weekend each year and as modified the
order is affirmed without costs.

     Memorandum: In appeal No. 1, respondent mother appeals from an
order that, inter alia, granted petitioner father increased visitation
with the parties’ two children and, in appeal No. 2, she appeals from
an order that, inter alia, awarded petitioners therein, the maternal
grandparents (grandparents), visitation with the children. With
respect to appeal No. 1, we conclude that, contrary to the mother’s
contention, the father established a change in circumstances
warranting a modification of the access provisions in the parties’
separation agreement (cf. Griffin v Griffin, 104 AD3d 1270, 1271).
“ ‘[A] change in circumstances may be demonstrated by, inter alia, . .
. interference with the noncustodial parent’s visitation rights and/or
telephone access’ ” (Goldstein v Goldstein, 68 AD3d 717, 720), and the
record here establishes that the mother interfered with the father’s
telephone communications with the children.

     Contrary to the mother’s further contention, we conclude that
Family Court properly determined that it was in the children’s best
interests to increase the father’s visitation with them (see Matter of
Swett v Balcom, 64 AD3d 934, 935-936, lv denied 13 NY3d 710; Matter of
Wallace B.O. v Christine R.S.-O., 12 AD3d 1057, 1057-1058). We agree
with the mother, however, that the court abused its discretion with
respect to certain aspects of the revised visitation schedule (see
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                                                         CAF 12-00645

generally Matter of Mathewson v Sessler, 94 AD3d 1487, 1489-1490, lv
denied 19 NY3d 815). The court abused its discretion in granting the
father parenting time “each and every weekday morning that school is
in session before school if he is able to exercise such parenting time
and ensure that the children are transported to school.” That award,
which is contained in the fourth ordering paragraph of the order, is
not in the children’s best interests because it creates instability
for them and is likely to increase tensions between the parents as a
result of the almost daily transfer of the children. We therefore
modify the order in appeal No. 1 accordingly.

     We further agree with the mother that the remaining provisions of
the fourth ordering paragraph are ambiguous, confusing, and
unnecessary. The remainder of that paragraph provides that “[t]he
father shall be entitled to arrange for before or after school
childcare. The parents shall share decision-making regarding the
minor children; however, if the parents disagree as to a major
decision regarding the children’s before or after school child-care
arrangements or any type of childcare needed, it is ordered that the
father’s decision shall control in this area.” It is not clear what
constitutes a “major decision” with respect to childcare, and we
conclude that each parent should be responsible for making childcare
arrangements during his or her respective parenting time. We
therefore further modify the order in appeal No. 1 accordingly.

     In addition, we agree with the mother that the court abused its
discretion in awarding the father both Memorial Day and Labor Day
weekends every year. We therefore further modify the order in appeal
No. 1 by directing in the fifth ordering paragraph that the mother,
rather than the father, shall have parenting time on Labor Day weekend
each year.

     With respect to appeal No. 2, the mother conceded at trial that
the grandparents had standing to seek visitation pursuant to Domestic
Relations Law § 72 (1). In any event, we conclude that the
grandparents established “a prima facie case of standing to seek
visitation with the subject child[ren]” inasmuch as they demonstrated
“the existence of a sufficient relationship with the child[ren] to
warrant the intervention of equity” (Matter of Gray v Varone, 101 AD3d
1122, 1123; see generally Matter of Emanuel S. v Joseph E., 78 NY2d
178, 182-183). The record establishes that the grandparents regularly
visited with the children before the mother ceased permitting such
visits. In addition, the grandmother provided full-time daycare for
the children before they reached school-age, took the children to pre-
kindergarten, and engaged in activities with them after school, and
the grandfather attended the children’s school activities. We agree
with the mother, however, that the order awarding visitation to the
grandparents should be modified to avoid conflict with the parents’
order of custody and visitation. We therefore modify the order in
appeal No. 2 by vacating that part of the first ordering paragraph
directing that the grandparents’ monthly Sunday visitation take place
during the mother’s parenting time and inserting in place thereof a
direction that the grandparents’ monthly visitation occur during the
father’s parenting time in odd-numbered months and during the mother’s
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                                                         CAF 12-00645

parenting time in even-numbered months. We conclude that the
modification is in the best interests of the children inasmuch as it
will prevent any conflict with Mother’s day or Father’s day and will
distribute the grandparents’ monthly visitation evenly between the
parents.

      Finally, we agree with the mother that the court abused its
discretion in awarding the grandparents one summer weekend of
visitation during the mother’s parenting time because it deprived the
mother of “significant ‘quality time’ ” with the children (Cesario v
Cesario, 168 AD2d 911, 911; see also Chamberlain v Chamberlain, 24
AD3d 589, 592-593). The order in appeal No. 1 provides that the
parents shall alternate physical custody of the children on a weekly
basis from July 1 until August 25, beginning with the father’s
parenting time. Thus, the mother receives only three weekends with
her children during the summer, one of which must be shared with the
grandparents to accommodate their monthly Sunday visitation. Awarding
the grandparents a summer weekend of visitation during the mother’s
parenting time results in the mother having only one full weekend with
the children in the summer and effectively gives the grandparents more
weekend time with the children in the summer than the mother, an
arrangement that we conclude is not in the children’s best interests.
We therefore further modify the order in appeal No. 2 by vacating that
part of the first ordering paragraph directing that the grandparents
have one summer weekend of visitation during the mother’s parenting
time.

     We have reviewed the mother’s remaining contentions and conclude
that they are without merit.




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
