Matter of Bacchus v. McGregor

2017 NY Slip Op 1352, 147 A.D.3d 1049, 48 N.Y.S.3d 683, 2017 WL 690930, 2017 N.Y. App. Div. LEXIS 1337

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 2017
• Docket: 2015-08202
• Status: Published

Opinion

Appeal by the father from an order of the Family Court, Kings County (Anthony Cannataro, J.), dated August 18, 2015. The order granted the mother’s motion, made at the close of the father’s case, to dismiss his petition to modify an order of custody and visitation of that court (Anne G. Feldman, J.H.O.) dated March 31, 2009.

Ordered that the order dated August 18, 2015, is affirmed, without costs or disbursements.

A final order of custody and visitation dated March 31, 2009, awarded custody of the subject child to the mother with visitation to the father. In March 2013, the father filed a petition to modify that order so as to award him custody. The Family Court conducted a hearing and, at the conclusion of the father’s case, granted the mother’s motion to dismiss his petition for failure to establish a prima facie case.

“An order of custody or visitation may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to ensure the best interests of the child” (Matter of C.H. v F.M., 130 AD3d 1028, 1028 [2015]; see Matter of Cruz v Figueroa, 132 AD3d 669 [2015]; Vollkommer v Vollkommer, 101 AD3d 1108 [2012]; Matter of Aronowich-Culhane v Fournier, 94 AD3d 1114, 1115 [2012]). In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom (see Matter of Cruz v Figueroa, 132 AD3d at 669; Matter of C.H. v F.M., 130 AD3d at 1028; Matter of Kerwin v Kerwin, 39 AD3d 950, 951 [2007]). “The question of credibility is irrevelant, and should not be considered” (Gonzalez v Gonzalez, 262 AD2d 281, 282 [1999]; see Matter of Ramroop v Ramsagar, 74 AD3d 1208, 1209 [2010]). Here, accepting his evidence as true and affording him the benefit of every reasonable inference, the father failed to present evidence sufficient to establish a prima facie case of a change of circumstances which might warrant modification of the underlying custody and visitation order (see Matter of Cruz v Figueroa, 132 AD3d at 669; Matter of C.H. v F.M., 130 AD3d at 1028). The Family Court, therefore, properly granted the mother’s motion, made at the close of the father’s case, to dismiss the petition to modify that order.

The father’s remaining contentions are without merit.

Mastro, J.P., Balkin, Cohen and Brathwaite Nelson, JJ., concur.