Matter of Dalton X. v Kerry Z.

Family Court, Tompkins County

Decided on April 21, 2026

Docket No. XXXXX

Scott A. Miller, J.

Petitioner Dalton X. (hereinafter "the father") and Respondent Kerry Z. (hereinafter "the mother") are the parents of the subject children born in 2017 and 2018. This action commenced on January 5, 2026, with the father's filing of a modification petition pursuant to Article 6 of the Family Court Act. The prior custody and visitation order was a very detailed and lengthy Order of Custody on Consent entered on January 2, 2024, after extensive negotiations by counsel for both parties as well as the Attorney for the Children. The 2024 Order of Custody on Consent granted the parties joint legal custody with the father to have parenting time as set forth in the order. The order indicated, "The parties acknowledge that the father's schedule is subject to regular change, that Father is subject to regular mandatory double shifts without previous notice, and that Father's shift swaps may fall through at any time. The Father agrees to communicate those changes to the Mother as soon as they occur, and the parties agree to work in good faith to [*2]agree to an updated schedule that is substantially similar to this agreement and permits parenting time on Father's days off. The adjusted schedule shall include roughly equal weekend parenting time."

In this proceeding, the father waived his right to counsel and appeared pro se. The mother was represented by Attorney Anthony Elia, Esq. Attorney Susan McNeil appeared as the Attorney for the Children. The Court searched the statewide registry of orders of protection, the Sex Offender Registry, and the Family Court's child protective records, and has notified the parties and the attorneys of the results of these searches.

On February 2, 2026, the mother filed a motion to dismiss arguing that the father failed to allege a substantial change in circumstances warranting modification of the prior order. On March 20, 2026, the father filed an affirmation in opposition to the motion to dismiss. On March 23, 2026, the mother filed a reply affirmation. On April 20, 2026, the Attorney for the Children filed an Affirmation in support of the mother's motion to dismiss. The Court has reviewed all submissions.

In his modification petition, the father seeks the following: (1) 50/50 parenting time; (2) a schedule allowing the parties alternating weekends with the children; (3) an order requiring the children to remain enrolled in the Lansing Central School District so long as at least one party resides within the district; (4) an order limiting school absences for non-essential travel to no more than ten days per academic year; (5) modification to the holiday schedule allowing the parties to alternate Christmas each year; and (6) primary placement and final decision-making authority with regard to educational matters to the father, if deemed necessary. He alleges a substantial change in circumstances based upon the following: (1) the father's "employment and work schedule have materially changed, requiring adjustments to the parenting time schedule"; (2) the mother "has failed and refused to reasonably accommodate the father's new work schedule, resulting in ongoing conflict and interference with parenting time"; (3) the mother "has expressed an intent to relocate the children and remove them from their established school district"; (4) "[t]he children have missed excessive amounts of school due to travel" with the mother; and (5) "[t]here are ongoing safety concerns and significant issues with effective co-parenting and communication, adversely impacting the children's stability and best interests."

In her moving papers, the mother argues that: (1) the father's changing work schedule was expressly contemplated in the 2024 Order of Custody on Consent and therefore cannot form the basis for a substantial change in circumstances; (2) the father's claim that the mother failed to negotiate an alternate parenting time schedule is demonstrably false because she offered the father three alternative schedules that comply with the order, all of which were rejected outright by the father with no alternative solutions proposed; (3) the allegation that the mother expressed an intent to relocate with the children is false, however even if it were true, an intent, even if expressed, could not form the basis for a substantial change in circumstances; furthermore, the impending sale of the marital home was known to the parties when they negotiated the 2024 Order of Custody on Consent, a potential move to Ithaca City School District would not constitute a "relocation" as defined in the Order, and the Order specifically provided that the children shall attend the school for which the mother is zoned; (4) the allegation regarding the children missing "excessive amounts of school" cannot form the basis for a substantial change in circumstances since the referenced travel to visit the mother's family in her country of origin is a long-standing family practice and was specifically contemplated in the 2024 Order of Custody on Consent, and further, the father fails to allege that the missed school has had any detrimental [*3]impact upon the children; and (5) the father's allegation of "ongoing safety concerns and significant issues with effective co-parenting" is vague, conclusory, and unsupported by any factual allegations.

In his affirmation in opposition, the father does not dispute the mother's assertion that she offered him three alternative schedules that comply with the order (set forth in detail in Attorney Elia's Reply Affirmation ¶ 9), that he rejected all three, and that he failed to offer a single counter proposal. The father also fails to supplement the claims in his petition with any specifics regarding the alleged "ongoing safety concerns and significant issues with effective co-parenting" or whether/how the missed school impacted the children in any fashion. In fact, the father fails to allege anywhere in his petition or answering papers that there is a specific material change in circumstances impacting the best interests of the children.

A "party seeking to modify an existing custodial arrangement" must "demonstrate, as a threshold, that 'there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the children' (Matter of Tyrel v. Tyrel, 132 AD3d 1026, 1026 [2015] [internal quotation marks and citations omitted]; see Matter of Gerber v. Gerber, 133 AD3d 1133, 1135 [2015])." Matter of Harrell v. Fox, 137 AD3d 1352, 1354 (3rd Dept. 2016). "[I]t is only when this threshold showing has been made that Family Court may proceed to undertake a best interest analysis" (Matter of Meyer v Lerche, 24 AD3d 976, 977 [2005])." Matter of Kerwin v. Kerwin, 39 AD3d 950, 951 (3rd Dept. 2007). If the requisite change of circumstances burden has been met, the petitioner must then demonstrate that the "best interests of the child[ren] would be served by modification of that order (Matter of David ZZ. v. Suzanne A., 152 AD3d 880, 881, 58 N.Y.S.3d 711 [2017] [internal quotation marks and citations omitted]; accord Matter of Heather U. v. Janice V., 160 AD3d 1149, 1150, 74 N.Y.S.3d 410 [2018])." Beers v. Beers, 163 AD3d 1197, 1198 (3rd Dept. 2018). In evaluating whether the father has alleged the requisite change in circumstances in his petition so as to withstand a motion to dismiss pursuant to CPLR §3211(7), the Family Court must "liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner." Matter of Gerard P. v. Paula P., 186 AD3d 934, 937 (3rd Dept. 2020).

Applying this standard and affording the petitioner every favorable inference, the Court must find as a matter of law that the petitioner has failed to allege facts that could constitute a substantial change in circumstances since the issuance of the 2024 Order of Custody on Consent warranting potential modification of the same. The father's change in work schedule could not, standing alone, constitute a material change in circumstances as it was specifically contemplated in the prior order. See V.B. v. R.B.D., 83 Misc 3d 1272(A) (Supreme Court, NY County, 2024), holding, "Generally, facts and changes contemplated and reasonably anticipated at the time of the entry into the original custody arrangement (whether by agreement or order) do not constitute a change in circumstance for the purposes of seeking a modification of custody [internal citations omitted]." Only the mother's failure to work in good faith to agree to an alternate parenting time schedule could potentially constitute a change in circumstances or violation of the order; however, here, the uncontroverted facts are that the mother proposed three separate alternative schedules that comply with the order, that the father rejected all three, and that the father failed to offer a single counter proposal. Thus, it appears it is the father who has violated the 2024 Order by failing to negotiate a new schedule in good faith. The father cannot use his own willful violation of the prior order as his basis for a change in circumstances [*4]warranting modification of the established order.

Further, the Court agrees with the mother that an intent to relocate, even if true and even if expressed, could not constitute a substantial change in circumstances. However, even if it could, the father's allegation that the mother is contemplating a move to the Ithaca City School District does not constitute a "relocation" within the meaning of the 2024 Order of Custody on Consent which expressly defines "relocation" as a move "more than twenty-five miles in a direct line" from the "Ithaca Area." Even if the intended move did constitute a "relocation," the parties specifically agreed to "engage in medication/ADR prior to submitting a case in Court" which has not been done. Even putting aside the question of an intended "relocation" as defined in the agreement, the parties expressly negotiated for the school district that the children shall attend and determined by mutual agreement that, "[t]he children will be enrolled in the school district that the Mother is zoned for." The parties could have but did not agree to a provision requiring the children to remain enrolled in the Lansing Central School District; rather they agreed that the children shall attend the school district that corresponds to the zoning of the mother's residence, without specifying more. There is no allegation of a substantial change in circumstances warranting a deviation from this agreed-upon provision.

The father's next allegation regarding the children missing "excessive amounts of school" likewise could not form the basis for a substantial change in circumstances since it is undisputed that the referenced travel to visit the mother's family in her country of origin is a long-standing, annual family practice and was specifically contemplated in the 2024 Order of Custody on Consent. Further, the father fails to allege that the missed school has had any detrimental impact upon the children. The mother asserts that she has been proactive in obtaining the children's assignments ahead of time so that the children do not fall behind in school. The mother further offers that the children will miss less school this year for their annual trip compared to years past. The father offers no proof to the contrary.

Finally, the father fails to offer even one specific allegation to support his claim of "ongoing safety concerns and significant issues with effective co-parenting." As such, the Court must reject this claim as vague, conclusory, and unsupported by any factual allegations. See John N. v. Melissa A., 83 Misc 3d 1245(A) (Supreme Court, NY County 2024), holding, "Hearings [regarding a proposed change] have been denied and modification requests dismissed, where, as here, the allegations were conclusory and unsubstantiated [internal citations omitted]." As such it is hereby

ORDERED that the motion to dismiss the father's modification petition for failure to allege a substantial change in circumstances is GRANTED; and it is further

ORDERED that the petition is DISMISSED.

Enter: April 21, 2026

Ithaca, New York

Hon. Scott A. Miller

Family Court Judge