Heller v. Bartman , 410 N.Y.S.2d 393 ( 1978 )

Appeal from an order of the Family Court, St. Lawrence County, entered February 23, 1978, which dismissed petitioner’s application seeking custody of the two children of her marriage to respondent. There is no showing of "unfitness” or that there has been a change of circumstances sufficient to warrant awarding the custody of the children to the petitioner (Family Ct Act, § 652). The court specifically found that under the present custody arrangement there was no adverse effect upon the children. It further appears from the record that the award of custody mentioned above was by order of the court on May 8,1972, pursuant to a stipulation between the parties hereto. Under such circumstances, the petitioner should not be allowed to abrogate her prior consent, absent an unusual change of circumstances which does not presently exist (Matter of Nehra v Uhlar, 43 NY2d 242). Order affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Staley, Jr. and Herlihy, JJ., concur.