GROTH v. GROTH (1997)

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

Matter of Gregory GROTH, Respondent, v. Connie S. GROTH, Appellant.

Decided: May 30, 1997

Before PINE, J.P., and LAWTON, CALLAHAN, BOEHM and FALLON, JJ.

Gannon, Gannon & Sullivan by Mary T. Sullivan, Buffalo, for Appellant. Brette M. Sember, Williamsville, for Law Guardian. Brian R. Welsh, Buffalo, for Respondent.

Following a hearing, Family Court properly denied the petition seeking modification of a previous custody order. “When there is no indication that a change in custody will substantially enhance the child's welfare [citation omitted] and the custodial parent is not shown to be unfit or less fit to continue as the proper custodian, the custody arrangement in place should not be disturbed” (Matter of Muzzi v. Muzzi, 189 A.D.2d 1022, 1023, 592 N.Y.S.2d 869; see, Fisher v. Fisher, 206 A.D.2d 910, 616 N.Y.S.2d 281). The evidence does not establish that the mother's proposed change in the custody arrangement would substantially benefit the children, nor does it establish that the father is unfit or less fit than the mother to care for them. Although the Law Guardian recommended that the petition be granted, it is well settled that the court may in its discretion reject the Law Guardian's recommendation (see, Zelnik v. Zelnik, 196 A.D.2d 700, 601 N.Y.S.2d 701).

Order unanimously affirmed without costs.

MEMORANDUM:

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