Appell v. Gooden

13 A.D.3d 1212, 786 N.Y.S.2d 785, 2004 N.Y. App. Div. LEXIS 16311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2004
• Status: Published

Opinion

Appeal from an order of the Family Court, Wayne County (John B. Nesbitt, J.), entered August 20, 2003 in a proceeding pursuant to Family Ct Act article 6. The order modified a prior order of visitation.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Petitioner, an inmate at Groveland Correctional Facility, commenced this proceeding seeking modification of the visitation provisions of a prior order. Family Court properly denied that part of the petition seeking an expansion of visitation from once a month to twice a month. “Where an order of custody and visitation is entered on stipulation, 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 of Watts v Watts, 290 AD2d 822, 823-824 [2002], lv denied 97 NY2d 614 [2002]). Petitioner failed to demonstrate a change in circumstances warranting modification or that expanding visitation would be in the children’s best interests (see Matter of Folsom v Folsom, 286 AD2d 830 [2001], lv denied 97 NY2d 606 [2001]; Matter of Davis v Davis, 232 AD2d 773, 773-774 [1996]). We reject the contention of petitioner that he was denied effective assistance of counsel (see Matter of Schimmel v Schimmel, 262 AD2d 990, 991 [1999], lv denied 93 NY2d 817 [1999]). Present—Pigott, Jr., P.J., Green, Pine, Gorski and Lawton, JJ.