IN RE: Christina WELLBROCK (2026)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Mary E. Porter, J.), dated September 24, 2024.  The order granted the father's motion, made at the close of the mother's case at a hearing, to dismiss the mother's petition to modify a so-ordered stipulation of settlement dated September 8, 2022, so as to, inter alia, reduce the father's parental access to once per week and alternating weekends, and dismissed the petition.

ORDERED that the order is affirmed, without costs or disbursements.

The parties are the parents of one child, born in November 2020.  In January 2024, the mother commenced this proceeding to modify a so-ordered stipulation of settlement regarding custody and parental access dated September 8, 2022 (hereinafter the 2022 custody order).  Pursuant to the 2022 custody order, the parties shared joint legal custody of the child, with the mother designated the residential custodian for the purposes of determining the school district.  The 2022 custody order also set forth a parental access schedule for each parent.  The mother sought to modify the 2022 custody order so as to reduce the father's parental access to once per week and alternating weekends.  The mother alleged in her petition, inter alia, that the father's apartment lacked adequate space and furniture for the child and that the child needed stability during the week because he was entering school.

The father moved to dismiss the petition, at the close of the mother's case at a hearing, on the ground that the mother failed to show, prima facie, a change in circumstances sufficient to modify the 2022 custody order.  In an order dated September 24, 2024, the Family Court granted the father's motion and dismissed the mother's petition.  The mother appeals.

Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child (see Matter of Dapp v Shtaynberger, 240 AD3d 891, 892;  Matter of Graffagnino v Esposito, 223 AD3d 805, 807).  In determining whether such a change has occurred, the court should consider the totality of the circumstances (see Matter of Mahoney v Hughes, 227 AD3d 908, 909;  Matter of Edwards v Edwards, 161 AD3d 979, 979).

In deciding a motion to dismiss a petition for failure to establish a prima facie case, the court must accept the petitioner's evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom (see Matter of Fortune v Jasmin, 232 AD3d 601, 603;  Matter of Hugee v Gadsden, 172 AD3d 863, 864).

Here, accepting the mother's evidence as true, and affording her the benefit of every favorable inference, the mother failed to present sufficient evidence to establish a prima facie case of a change in circumstances which might warrant modification of the 2022 custody order in the best interests of the child (see Matter of Garcia v Manukian, 190 AD3d 854, 855;  Matter of Hugee v Gadsden, 172 AD3d at 864).

The mother's remaining contention is improperly raised for the first time in her reply brief.

DUFFY, J.P., CHRISTOPHER, LANDICINO and LOVE, JJ., concur.