Le Clair v. McDonald — 26 A.D.3d 691

Majority

p. 691

In the Matter of Virginia Le Clair, Appellant, v Dale McDonald, Sr., Respondent. (And Another Related Proceeding.)

[809 NYS2d 309]

Appeal from an order of the Family Court of Clinton County (Lawliss, J.), entered March 9, 2005, which, inter alia, partially granted petitioner’s application, in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Both parties filed petitions in Family Court seeking modification of a prior order granting respondent visitation with the parties’ son. The court partially granted the petitions by crafting a detailed plan for visitation during the child’s school vacations and holidays. Fetitioner appeals, contending that the court erred by not terminating respondent’s Thursday overnight visitation every other week, not changing the location where the parties exchange the child and not ordering that respondent return the child to her if he is working during his visitation times. As these contentions have no merit, we affirm.

Despite petitioner’s pretrial allegations regarding the child being cranky after Thursday night visits with respondent, no change was warranted because petitioner did not present any proof on that matter at the hearing (see Matter of Finch v Dunn, 11 AD3d 755 , 756 [2004]). Petitioner’s proof failed to establish that changing the exchange location would benefit the child,

p. 692

rather than just being more convenient for petitioner. As the parties cannot communicate, Family Court reasonably determined that it would be easier for the working parent to arrange for a daycare provider than to require each party to inform the other when he or she was working during visitation periods so that the nonworking parent could watch the child at those times (compare Matter of Leach v Santiago, 20 AD3d 715 , 717-718 [2005], lv denied 6 NY3d 702 [2005]). Because the record supports Family Court’s findings that these requested changes were not in the child’s best interest, we will not disturb those findings (s ee Matter of Dickinson v Dickinson, 309 AD2d 994 , 995 [2003]).

Mercure, J.P., Crew III, Peters and Mugglin, JJ., concur. Ordered that the order is affirmed, without costs.

Cases cited

Finch v. Dunn 11 AD3d 755 N.Y. App. Div. 2004-10-21 at 756 p. 691
Leach v. Santiago 20 AD3d 715 N.Y. App. Div. 2005-07-14 at 717-718 p. 692
Dickinson v. Dickinson 309 AD2d 994 N.Y. App. Div. 2003-10-23 at 995 p. 692