Respondent-father brought this motion seeking to modify the provision of the custody and visitation Order, dated October 10, 2006, directing him to relocate from his "present residence" within eighteen months of the date of the Order. Petitioner-mother opposes the requested relief and the child's attorney submitted an affirmation in support of the respondent's application.

Petitioner is represented by Jill Stone, Esq. Respondent is represented by Lally & Lally, LLP by Grant M. Lally. Adam Small, Esq. was appointed attorney for the child.

Respondent argues the modification would be proper for a number of reasons. First, the reason for that provision that he must move after eighteen months was that petitioner and respondent's ex-wife, with whom he shares his current residence, were having unpleasant confrontations. Since that is no longer the case, there is no need for him to move. Second, C. is very comfortable in respondent's current residence and forcing him to move would upset her. Part of the cause of her upset would be the interruption in her relationship with her older brother, with whom she is very close. This brother is respondent's child with his ex-wife and who lives in respondent's current residence. Third, respondent recently purchased a fifty percent interest in his current residence and forcing him to relocate would be a financial burden.

Modification of a custody arrangement requires the requisite change in circumstances. Pignataro v. Davis, 8 AD3d 487 (2d Dept. 2004). Any such modification must be necessary to ensure the best interests of the child. Dow v. Dow, 306 AD2d 529 (2d Dept. 2003), Pignataro v. Davis, supra. The Court finds that respondent's application fails to allege a change in circumstances warranting a modification of the Order. None of the issues raised by respondent were unforeseen at the time the Order was consented to. See Neftleberg v. Neftleberg, 38 AD3d 864 (2d Dept. 2007). It is not a change in circumstances that he financially bound himself to his current residence with full knowledge of the provisions of the custody Order. Regarding C., respondent alleges, in essence, that she will be happier if he remains in the current residence, but such an assertion is merely speculation on his part.

The Court is at a loss to understand how respondent did not consider that his daughter might like his home and enjoy seeing her brother at the time he agreed to this most unorthodox provision. But that he likely regrets that decision now does not equate to grounds to modify an Order. The respondent also fails to explain why his relocation automatically will result in a disruption in the relationship between C. and her brother. The Order only directs that he move out of his current residence. It does not prevent him from moving next door. It does not prevent him from moving into a new residence with his son and ex-wife. The only thing he must do is leave. Once he leaves, all he must do is obtain a residence with a private entrance.

The Court is mindful that the child's attorney supports the respondent's application as he believes it will be in C.'s best interest for respondent to remain in his current residence. But the standard the Court must consider is whether the modification is necessary to ensure the child's best interests. Pignataro, supra. That has not been established. At best, it has been established only that the move will inconvenience the respondent. Cf. Haran-Buckner v. Buckner, 188 AD2d 705 (3d Dept 1992.). Accordingly, it is

ORDERED, that respondent's motion to modify the Order of this Court dated October 10, 2006 is denied in its entirety.

This constitutes the Decision and Order of the Court.

ENTER [*3]

_____________________________

Hon. Conrad D. Singer

Judge of the Family Court

Dated: March 28, 2008