The following excerpt is from W.D. v. L.P., 2020 NY Slip Op 51262 (U) (N.Y. Fam. Ct. 2020):
In deciding a motion to dismiss a petition, the court must accept the petitioner's evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom. Bacchus v. McGregor, 147 AD3d 1049, 1050 (2d Dept. 2017). Therefore, the court is construing the allegations in the light most favorable to the Father. In his petition, the Father lists the following as changes in circumstances requiring modification of the order: the Father's job and work schedule have changed such that he is now required to be in his office in Manhattan "during business hours" and must commute "45 minutes away by train"; the child's school and school schedule have changed; and the birth of a new child to the Father. In his petition, the Father states that the change in his job has rendered him unable to be "present" for the vast majority of the weekday daytime visitation with the child thereby depriving him of meaningful parenting time with the child and his new son together. Nothing in the Father's petition alleges that modification is necessary to further the best interest of the child.
The above passage should not be considered legal advice. Reliable answers to complex legal questions require comprehensive research memos. To learn more visit www.alexi.com.