IN RE: Michael MILLER

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

IN RE: Michael MILLER, Appellant, v. Ashley THOMPSON, Respondent.

2019–10084

Decided: June 10, 2020

RUTH C. BALKIN, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ. Paul W. Matthews, New York, NY, for appellant. Janis A. Parazzelli, Floral Park, NY, for respondent. Carol L. Kahn, New York, NY, attorney for the child.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Richmond County (Peter F. DeLizzo, J.), dated August 14, 2019.  The order, after a hearing, in effect, denied the father's petition to modify a prior order of custody and parental access of the same court (Arnold Lim, J.) dated September 11, 2014, so as to preclude the mother from enrolling the subject child at a charter school located in Manhattan and to direct that the child remain in school in Staten Island, and modified the parental access provision of that prior order so as to direct that the father's parental access schedule with the child would be from Sunday morning to Monday morning or evening, as circumstances provided.

ORDERED that the order dated August 14, 2019, is modified, on the law and the facts, by deleting the provision thereof directing that the father's parental access schedule with the child would be from Sunday morning to Monday morning or evening, as circumstances provided;  as so modified, the order dated August 14, 2019, is affirmed, without costs or disbursements.

The parties are the parents of one child born in 2008.  In an order dated September 11, 2014 (hereinafter the prior order), the Family Court awarded the parties joint legal custody of the child with final decision-making authority to the mother, and, in effect, awarded physical custody to the mother with “liberal [parental access]” to the father, “as the parties agree.”  In June 2019, the father filed a petition to modify the decision-making provision of the prior order so as to preclude the mother from enrolling the child at a charter school located in Manhattan and to direct that the child remain in school in Staten Island.  After a hearing, in an order dated August 14, 2019, the Family Court, in effect, denied the father's petition and modified the parental access provision of the prior order so as to direct that the father's parental access schedule with the child would be from Sunday morning to Monday morning or evening, as circumstances provided.  The father appeals.

We agree with the father that the Family Court should have issued either a written decision or an oral decision setting forth its findings of fact, and the court did not state the facts it deemed essential to its determination in the order on appeal.  However, remittal is not necessary since the record is sufficient for this Court to conduct an independent review of the evidence (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 80, 103 N.Y.S.3d 445).

“Modification of an existing court-sanctioned custody or [parental access] arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child” (Matter of O'Shea v. Parker, 116 A.D.3d 1051, 1051, 983 N.Y.S.2d 903;  see Matter of Newton v. McFarlane, 174 A.D.3d at 76, 103 N.Y.S.3d 445;  Matter of Spencer v. Killoran, 147 A.D.3d 862, 863, 46 N.Y.S.3d 658).  Here, the father failed to make a showing that there had been a change in circumstances such that modification of the prior order was necessary to ensure the child's best interests.  To the contrary, the father acknowledged that the proposed enrollment at the school in Manhattan would be academically beneficial to the child, who then lived in Brooklyn, even though it would increase the father's travel time from Staten Island on the days on which he picked the child up from school.  Accordingly, we agree with the Family Court's determination, in effect, to deny his petition (see Matter of Legall v. Belle, 180 A.D.3d 910, 912, 116 N.Y.S.3d 576;  Matter of Dokmeci v. Herbert, 167 A.D.3d 877, 878, 90 N.Y.S.3d 258;  Matter of Lamarche v. Rooks, 142 A.D.3d 707, 708, 36 N.Y.S.3d 891).

We agree with the father, however, that the Family Court should not have modified the parental access provision of the prior order so as to direct that the father's parental access schedule with the child would be from Sunday morning to Monday morning or evening, as circumstances provided.  None of the parties requested this relief, and the record established that there was no disagreement between the parties regarding the parental access schedule and the parties had been cooperating with regard to same, the father regularly saw the child multiple times per week, and there was no indication that the child's best interests would be served by the parental access schedule set forth by the court (see generally Matter of Samuel v Sowers, 162 A.D.3d 674, 675, 78 N.Y.S.3d 231;  Matter of Grant v. Terry, 104 A.D.3d 854, 961 N.Y.S.2d 304).

The father's remaining contentions are without merit.

BALKIN, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.

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