Fourth Department – Custody – Change in Circumstances: McClinton v. Kirkman

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Appellate Division, Fourth Department

Custody – Change in Circumstances

Motion to Dismiss – Abdication of Primary Caregiver Role

McClinton v. Kirkman

CAF 14-01645

Appealed from Family Court, Onondaga County

Background: The petitioner mother commenced a proceeding seeking to modify a prior order to which the respondent father had sole custody of the parties’ child. She appealed from the dismissal of her complaint.

Ruling: The Appellate Division reversed. The court held that when a respondent moves to dismiss a modification proceeding at the conclusion of the petitioner’s proof, the court must accept as true the petitioner’s proof and afford the petitioner every favorable inference. Using this standard, the Appellate Division concluded that there was prima facie evidence of a change of circumstances that would warrant a modification of custody. This included documentary evidence established through her testimony that the child was living with the paternal grandmother while the father lived elsewhere and that the father abdicated his role as primary caregiver.

John M. Wesley of the Frank H. Hiscock Legal Aid Society for the petitioner-appellant; Christopher E. Burke, attorney for the child