Coles v. Bailey , 700 N.Y.S.2d 281 ( 1999 )

—Mercure, J. P.

Appeal from an order of the Family Court of Rensselaer County (Hummel, J.), entered September 29, 1998, which, inter alia, dismissed respondent’s applications, in two proceedings pursuant to Family Court Act article 6, to find petitioner in violation of a prior order of visitation.

By order entered October 20, 1995, Family Court awarded sole legal and physical custody of the parties’ daughter (born in 1990) to petitioner, subject to respondent’s right to visitation on alternate weekends and holidays. In 1998, respondent filed two separate violation petitions alleging that petitioner violated the visitation provisions of the 1995 order and seeking a change of custody. Following a fact-finding hearing, Family Court found that respondent had failed to establish a change in circumstances and dismissed the petitions. Respondent appeals and we affirm.

In view of respondent’s utter failure to establish a change in circumstances justifying a modification of the existing custody arrangement, Family Court acted well within its discretion in refusing to interview the parties’ child. Further, respondent’s challenge to Family Court’s failure to consider a report of Aaron Hoorwitz has not been preserved for our consideration. Notably, respondent did not offer the report into evidence or make a timely request for an adjournment for the purpose of producing its author. Finally, we note that, despite Family Court’s repeated warnings concerning the pitfalls of pro se representation and offers to assign a lawyer to represent respondent free of charge, respondent insisted upon representing himself.

Peters, Spain, Carpinello and Graffeo, JJ., concur. Ordered that the order is affirmed, without costs.