McKenzie v. Polk

• Decision Date: 09 November 2018
• Docket Number: 1154,CAF 17–01898
• Citation: 85 N.Y.S.3d 810 (Mem),166 A.D.3d 1529
• Parties: In the Matter of Michael F. MCKENZIE, Sr., Petitioner–Respondent, v. Jessica L. POLK, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

166 A.D.3d 1529

85 N.Y.S.3d 810 (Mem)

In the Matter of Michael F. MCKENZIE, Sr., Petitioner–Respondent,

v.Jessica L. POLK, Respondent–Appellant.

1154

CAF 17–01898

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

Entered: November 9, 2018

DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.

AUDREY ROSE HERMAN, BUFFALO, ATTORNEY FOR THE CHILD.

PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, respondent mother appeals from an order that, inter alia, modified a prior order of custody and visitation by awarding the parties joint legal custody of the subject child with primary physical residence with petitioner father and visitation to the mother. We reject the mother's contention that there was not a sufficient change in circumstances warranting an inquiry into whether modification of the prior order is in the child's best interests. "Where an order of custody and visitation is entered on stipulation, a court cannot modify that order unless a sufficient change in circumstances—since the time of the stipulation—has been established, and then only where a modification would be in the best interests of the child[ ]" ( Matter of Hight v. Hight, 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [4th Dept. 2005] [internal quotation marks omitted] ). Here, there was a sufficient change in circumstances inasmuch as the parties "had in practice altered the custody and visitation arrangement set forth in the stipulated order" ( Matter of Donnelly v. Donnelly, 55 A.D.3d 1373, 1373, 865 N.Y.S.2d 442 [4th Dept. 2008] ). Contrary to the mother's further contention, we conclude that a sound and substantial basis in the record supports Supreme Court's determination that awarding the father primary physical custody of the subject child is in the child's best interests (see Matter of Cross v. Caswell, 113 A.D.3d 1107, 1107–1108, 977 N.Y.S.2d 853 [4th Dept. 2014] ).