IN RE: Proceeding for CUSTODY/VISITATION. (2009)

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

IN RE: Proceeding for CUSTODY/VISITATION. Susan B., Petitioner-Respondent, v. Charles M., Respondent-Appellant.

Decided: November 12, 2009

GONZALEZ, P.J., ANDRIAS, SAXE, RENWICK, MANZANET-DANIELS, JJ.

Nancy Botwinik, New York, for appellant. Amanda Norejko, New York, for respondent. Karen P. Simmons, The Children's Law Center, Brooklyn (Barbara H. Dildine of counsel), Law Guardian.

Order, Supreme Court, Bronx County (Diane Kiesel, J.), entered on or about April 24, 2008, which granted the mother's petition to modify a prior order governing respondent father's visitation of their child, unanimously affirmed, without costs.

The original order directed respondent not to consume alcohol while with the child. We defer to the more recent determination of the nisi prius court (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ), which was supported by the testimony of two police officers that respondent arrived at the designated location for exchange of the child in a state of intoxication. Such conduct constituted a change in circumstances warranting modification, in the child's best interests, to a more restrictive visitation schedule (see Matter of Kelley v. VanDee, 61 A.D.3d 1281, 878 N.Y.S.2d 807 [2009] ).

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