IN RE: Fred JACOBS (2025)

MEMORANDUM AND ORDER

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

Memorandum: Petitioner father commenced this proceeding in January 2023 seeking to modify a custody order entered upon the parties’ consent in September 2022 by granting him sole custody. The consent order granted the parties joint custody of their then-three-year-old son, with “primary residential custody” of the child to respondent mother. Following an evidentiary hearing, Family Court dismissed the father's modification petition on the ground that he failed to establish a change of circumstances warranting an inquiry into the best interests of the child, which was consistent with the position taken by the Attorney for the Child. We affirm.

“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 child[ ]” (Matter of McKenzie v. Polk, 166 A.D.3d 1529, 1529, 85 N.Y.S.3d 810 [4th Dept. 2018] [internal quotation marks omitted]; see Matter of Berg v. Stoufer-Quinn, 179 A.D.3d 1544, 1544, 118 N.Y.S.3d 876 [4th Dept. 2020]). To warrant an inquiry into whether a change in custody is in the child's best interests, the change in circumstances must be significant (see Matter of Aronica v. Aronica, 151 A.D.3d 1605, 1605, 56 N.Y.S.3d 701 [4th Dept. 2017]).

Here, the father alleged in his modification petition that a sufficient change in circumstances arose from the fact that the child, who wore a diaper, was found to have a rash in his genital area at school on a day that he came from the mother's house. The petition further alleged that the child had been slapped by the mother's daughter, causing red marks on his cheeks. Even assuming, arguendo, that the father established those allegations at the hearing, we agree with the court that the alleged changes in circumstances were not significant enough “to warrant an inquiry into the child's best interests” (Matter of Luce v. Buehlman, 218 A.D.3d 1243, 1244, 192 N.Y.S.3d 400 [4th Dept. 2023], lv denied 40 N.Y.3d 908, 2023 WL 8631545 [2023]).

Additionally, the father did not otherwise establish a change in circumstances. Although the father testified that the child occasionally had dirty hands, fingernails and feet while in the mother's care, the evidence at the hearing further demonstrated that the child's alleged hygiene problems existed before the father agreed to give the mother primary physical custody and thus did not constitute a change in circumstances (see generally Matter of Williams v. Reid, 187 A.D.3d 1593, 1594, 133 N.Y.S.3d 152 [4th Dept. 2020]). Finally, while a deterioration of the relationship between parents may constitute a significant change in circumstances (see Matter of Nowlan v. Cunningham, 211 A.D.3d 1524, 1525, 180 N.Y.S.3d 435 [4th Dept. 2022]), we note that the child has by all accounts thrived under the existing custodial arrangement notwithstanding the parties’ hostility toward each other, and there is no indication in the record that the relationship is worse than it was before the prior order was entered (see Matter of Brookover v. Harris, 217 A.D.3d 1411, 1412, 190 N.Y.S.3d 769 [4th Dept. 2023]).