IN RE: Marvelle WOODRUFF (2008)

 Marvelle Woodruff, the mother of the children at issue herein, contends in appeal No. 1 that Family Court erred in dismissing her family offense petition, and she contends in appeal No. 2 that the court erred in modifying a prior order of custody and visitation by removing the provision that the two-hour period of weekly visitation of Kevin Rogers, the children's father, must be supervised by the mother.   We affirm the order in each appeal.   The court properly dismissed the mother's family offense petition in appeal No. 1 because the mother failed to establish “by a ‘fair preponderance of the evidence’ ” that the father committed the violation of harassment in the second degree (Penal Law § 240.26[1] ) and the crime of menacing in the third degree (§ 120.15), as alleged in her petition (Matter of Smith v. Smith, 24 A.D.3d 822, 823, 804 N.Y.S.2d 854, quoting Family Ct. Act § 832).   Contrary to the mother's contention with respect to the order in appeal No. 2, the record establishes that the court's modification of the prior order of custody and visitation was in the best interests of the children (see generally Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380-381, 779 N.Y.S.2d 159, 811 N.E.2d 526;  Matter of Sullivan v. Sullivan, 40 A.D.3d 865, 866, 836 N.Y.S.2d 259).

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

MEMORANDUM: