Calendar Date: April 30, 2018Before: McCarthy, J.P., Lynch, Devine and Clark, JJ.__________Rural Law Center of New York, Castleton (Kelly L. Egan ofcounsel), for appellant.D. Alan Wrigley Jr., Cambridge, attorney for the child.__________McCarthy, J.P.Appeal from an order of the Family Court of Warren County(Kershko, J.), entered October 4, 2016, which, among otherthings, granted petitioner’s application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order ofcustody.Kylee II. (hereinafter the mother) and Jason HH.(hereinafter the father) are the parents of one child (born in2010). In October 2011, the parties stipulated to an ordergranting them joint legal custody and shared physical custody,with the mother having parenting time from 6:30 p.m. on Mondaysuntil 6:30 p.m. on Thursdays, as well as alternate holidays. In2015, the parties each filed petitions seeking sole custody ofthe child. Due to allegations that the mother’s live-inboyfriend was abusing the child, Family Court (Wait, J.) entereda temporary order granting the father primary physical custodyand giving the mother weekend parenting time, but requiring themother to exercise that time at her aunt’s house and notpermitting contact between her boyfriend and the child. A monthlater, after learning the results of investigations into theboyfriend, the court removed the restrictions on the mother butcontinued her weekend-only time because the child had begunattending school in the father’s school district. Following ahearing, Family Court (Kershko, J.) granted the father sole legaland physical custody of the child and provided the mother withsix hours of supervised visitation on Saturdays. The motherappeals.“A parent seeking to modify an existing custody order firstmust demonstrate that a change in circumstances has occurredsince the entry thereof that is sufficient to warrant the courtundertaking a best interests analysis in the first instance;assuming this threshold requirement is met, the parent then mustshow that modification of the underlying order is necessary toensure the child’s continued best interests” (Matter ofMenhennett v Bixby, 132 AD3d 1177, 1179 [2015] [citationsomitted]; see Matter of Fiacco v Fiacco, 158 AD3d 1011, 1012[2018]). The child was a toddler when the prior order wasentered, and he began attending full-day school in 2015. Thischange in circumstances required modification of the physicalcustody arrangement because the parents live in separate schooldistricts that are approximately one hour apart from each otherand, under the prior order, they split the weekdays (see Matterof Woodrow v Arnold, 149 AD3d 1354, 1356 [2017]; Matter of Wilsonv Hendrickson, 88 AD3d 1092, 1093-1094 [2011]). Regarding legalcustody, the evidence demonstrated that the parents communicateessentially through text message, the mother and the father’swife have each accused the other of removing her from emergencycontact lists, and the parties do not adequately communicate onthe topics of the child’s health and education. Because thefather’s home provides greater structure and stability and he hasappropriately dealt with the child’s health issues, while themother complains that she is not kept informed of those healthissues yet she has not taken the child to the doctor or evencalled the doctor’s office to obtain information, the recordevidence provides a sound and substantial basis for FamilyCourt’s decision to award the father sole legal and primaryphysical custody.However, the record does not support Family Court’sdecision to reduce the mother’s parenting time to six supervisedhours per week. The first temporary order did not requiresupervision, even though the mother was living with a man who wasalleged to have physically and sexually abused the child. Thatorder only required that the mother prevent contact between theboyfriend and the child and that the visitation take place at theaunt’s residence. The second temporary order removed thoserestrictions. By the time of the hearing, the boyfriend nolonger lived with the mother and their relationship had ended.The mother had a positive relationship with the child and hewanted to spend more time with her. The record does not indicatethat unsupervised time would be detrimental to the child.Neither the father nor the attorney for the child requestedsupervision or further curtailment of the mother’s visitation.Thus, there is no basis to require supervision of the mother whenshe exercises parenting time, nor to limit her to only six hoursper week (see Matter of Kuklish v Delanoy, 155 AD3d 1376, 1378-1379 [2017]). Her parenting time should be increased to two outof every three weekends, commencing after school on Friday, or at3:00 p.m. if school is not in session, until 6:00 p.m. on Sunday,as well as alternating weeks during the summer break andalternating holidays as provided for in the 2011 custody order(see id.; Matter of O’Dale UU. v Lisa UU., 140 AD3d 1249, 1252[2016]).ORDERED that the order is modified, on the law, withoutcosts, by awarding Kylee II. additional parenting time as setforth in this Court’s decision, and, as so modified, affirmed.ENTER:Robert D. MaybergerClerk of the Court
