IN RE: RONALD D. ROSSBOROUGH (2015)

MEMORANDUM AND ORDER

PETER J. DEGNAN, ATTORNEY FOR THE CHILD, ALFRED.

DAVID E. CODDINGTON, ATTORNEY FOR THE CHILDREN, HORNELL.

It is hereby ORDERED that said appeal insofar as it concerns the older stepchild is unanimously dismissed and the order is affirmed without costs.

Memorandum:  Petitioner father appeals from an order denying his petitions for visitation with his two former stepchildren, for modification of the visitation order with respect to his child with respondent mother, and for violation of visitation orders.   The father's contention regarding visitation with the older stepchild is moot because he is now 18 years old (see Matter of Woodruff v. Adside, 26 AD3d 866, 866).   The father contends that Family Court erred in determining that visitation with the younger stepchild was not in her best interests.   We conclude that the court properly dismissed the petition seeking visitation with the younger stepchild, but our reasoning differs from that of the court.   We conclude that the father lacks standing to seek visitation with the younger stepchild (see Matter of Reeves v Erie County Dept. of Social Servs., 96 AD3d 1471, 1471;  Matter of Multari v. Sorrell, 287 A.D.2d 764, 765–766).   The father's contention that the doctrine of judicial estoppel applies here is not properly before us because it is raised for the first time in his reply brief (see Matter of Deuel v. Dalton, 33 AD3d 1158, 1159;  Matter of Yorimar K.-M., 309 A.D.2d 1148, 1149).

Contrary to the father's contention, the court properly determined that he failed to show a change in circumstances to warrant a modification of the visitation order and failed to establish that the mother willfully violated a clear mandate of the visitation orders (see Matter of Sorokina v. Moody, 91 AD3d 1307, 1307).

Frances E. Cafarell

Clerk of the Court