SMITH-GILSEY, LINDA v. GRISANTI, RICHARD D.

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

1185
CAF 12-01091
PRESENT: SMITH, J.P., CENTRA, CARNI, AND WHALEN, JJ.

IN THE MATTER OF LINDA SMITH-GILSEY,
PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

RICHARD D. GRISANTI, RESPONDENT-RESPONDENT.
-------------------------------------------
IN THE MATTER OF RICHARD D. GRISANTI,
PETITIONER-RESPONDENT,

V

LINDA SMITH-GILSEY, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)

MICHAEL STEINBERG, ROCHESTER, FOR PETITIONER-APPELLANT AND
RESPONDENT-APPELLANT.

RICHARD D. GRISANTI, RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT
PRO SE.

JANE E. MONAGHAN, ATTORNEY FOR THE CHILD, WARSAW.

Appeal from an order of the Family Court, Wyoming County (Michael
F. Griffith, J.), entered February 2, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, denied the
petition of petitioner-respondent for a modification of custody.

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

Memorandum: Petitioner-respondent mother appeals from two orders
that, inter alia, denied her petition for a modification of custody
(appeal No. 1) and changed her visitation schedule (appeal No. 2). We
affirm the order in each appeal. A parent seeking to modify an
existing custody order must demonstrate “a change in circumstances
that reflects a genuine need for the modification so as to ensure the
best interests of the child” (Matter of Taylor v Fry, 63 AD3d 1217,
1218; see Matter of Sumner v Lyman, 70 AD3d 1223, 1224, lv denied 14
NY3d 709). Although we agree with the mother that she met her burden
of proving a change in circumstances because the parties’ relationship
had deteriorated and the child had missed numerous visitations with
her, we conclude on the record before us “ ‘that a change in custody
would not be in the best interests of the [child]’ ” (Matter of
 -2- 1185
CAF 12-01091

Dingeldey v Dingeldey, 93 AD3d 1325, 1326). Furthermore, the court
properly exercised its discretion in crafting a visitation schedule
that was in the child’s best interests (see Matter of Fox v Fox, 93
AD3d 1224, 1225).

Contrary to the mother’s contention, by requiring respondent-
petitioner father to post an undertaking in a specified amount, the
court properly imposed a meaningful sanction based on the father’s
failure to comply with orders concerning her visitation rights, to
ensure that visitation occurred (see generally Matter of Mason-Crimi v
Crimi, 94 AD3d 1572, 1573-1574; Schoonheim v Schoonheim, 92 AD2d 474,
474-475). Finally, we reject the mother’s contention that the court
lacked jurisdiction over the instant matters, inasmuch as the father
resides in Wyoming County (see Family Ct Act § 171).

Entered: November 15, 2013 Frances E. Cafarell
Clerk of the Court