Devore v. O'Harra-Gardner
| Decision Date | 08 November 2019 |
| Docket Number | 848,CAF 18-00611 |
| Parties | In the Matter of Joshua N. DEVORE, Petitioner-Respondent, v. Dhanaiah M. O'HARRA-GARDNER, Respondent-Appellant. |
| Court | New York Supreme Court — Appellate Division |
177 A.D.3d 1264
112 N.Y.S.3d 380
In the Matter of Joshua N. DEVORE, Petitioner-Respondent,
v.
Dhanaiah M. O'HARRA-GARDNER, Respondent-Appellant.
848
CAF 18-00611
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: November 8, 2019
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT–APPELLANT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order that modified the parties' prior order of custody and visitation by, inter alia, granting petitioner father custody of the subject child. We affirm.
Initially, we reject the mother's contention that Family Court erred in denying her motion to dismiss the petition, which was made following the close of the father's proof (see generally Matter of William EE. v. Christy FF., 151 A.D.3d 1196, 1197, 55 N.Y.S.3d 818 [3d Dept. 2017] ). The father presented evidence during his case-in-chief that the mother failed to follow the visitation provisions of the court's
order and that she had frustrated his telephonic access to the child. We conclude that this evidence, viewed in the light most favorable to the father, demonstrated a change in circumstances that, if established, would warrant an inquiry into whether modification of the order would be in the child's best interests, and thus the court properly denied the motion (see id. ; Matter of Dubiel v. Schaefer, 108 A.D.3d 1093, 1093–1094, 969 N.Y.S.2d 311 [4th Dept. 2013] ).
We agree with the mother that the court failed to satisfy its obligation to make an express finding whether the father, in support of his petition to modify the prior custody and visitation order, established the requisite change in circumstances before it analyzed whether an order granting custody to the father was in the child's best interests. We...
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