IN RE: Michael J. DONNELLY (2008)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Michael J. DONNELLY, Petitioner-Respondent, v. Joni L. DONNELLY, Respondent-Appellant.

Decided: October 03, 2008

PRESENT: HURLBUTT, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ.

Paloma A. Capanna, Penfield, for Respondent-Appellant. Teresa M. Paré, Canandaigua, for Petitioner-Respondent. Linda M. Jones, Law Guardian, Batavia, for James P.D.

Family Court properly modified a prior order of custody and visitation by awarding primary physical custody of the parties' child to petitioner father and visitation to respondent mother. “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 Hight v. Hight, 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [internal quotation marks omitted] ). Here, there was a sufficient change in circumstances inasmuch as the parties had in practice altered the custody and visitation arrangement set forth in the stipulated order, and we conclude on the record before us that modification of that order to reflect the altered arrangement is in the best interests of the parties' child (see generally Matter of Duffy v. Duffy, 260 A.D.2d 960, 961, 689 N.Y.S.2d 274).

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

MEMORANDUM:

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