Opinion
472 CAF 21-01782
07-28-2023
In the Matter of Karoline DIEDRICHS, Petitioner-Appellant, v. Christopher G. MCAVOY, Respondent-Respondent. (Appeal No. 1.)
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER-APPELLANT. JOSEPH S. DRESSNER, CANANDAIGUA, FOR RESPONDENT-RESPONDENT. SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER-APPELLANT.
JOSEPH S. DRESSNER, CANANDAIGUA, FOR RESPONDENT-RESPONDENT.
SUSAN E. GRAY, CANANDAIGUA, ATTORNEY FOR THE CHILD.
PRESENT: PERADOTTO, J.P., BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother commenced this proceeding pursuant to Family Court Act article 6 seeking to modify a prior custody and visitation order entered on stipulation by awarding her "joint custody [and] placement" of the child with visitation to respondent father. The mother appeals from an order that effectively granted the father's motion to dismiss the petition.
It is well settled that "[w]here an order of custody and visitation is entered on stipulation, a court cannot modify that order unless a sufficient change in circumstances—since the time of the stipulation—has been established, and then only where a modification would be in the best interests of the child[ ]" ( Matter of Berg v. Stoufer-Quinn , 179 A.D.3d 1544, 1544, 118 N.Y.S.3d 876 [4th Dept. 2020] [internal quotation marks omitted]; see Matter of McKenzie v. Polk , 166 A.D.3d 1529, 1529, 85 N.Y.S.3d 810 [4th Dept. 2018] ; Matter of Hight v. Hight , 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [4th Dept. 2005] ). "[O]ne who seeks to modify an existing order of [custody and] visitation is not automatically entitled to a hearing [and] must make some evidentiary showing sufficient to warrant it" ( Matter of Moreno v. Elliott , 170 A.D.3d 1610, 1612, 94 N.Y.S.3d 500 [4th Dept. 2019] [internal quotation marks omitted]; see Berg , 179 A.D.3d at 1545, 118 N.Y.S.3d 876 ). Here, we conclude that the mother failed to establish the requisite change in circumstances, and Family Court therefore did not err in granting the father's motion to dismiss the petition (see Matter of Jessica EE. v. Joshua EE. , 188 A.D.3d 1479, 1481-1482, 137 N.Y.S.3d 179 [3d Dept. 2020] ; see also Berg , 179 A.D.3d at 1545, 118 N.Y.S.3d 876 ; Matter of De Cicco v. De Cicco , 29 A.D.3d 1095, 1096, 814 N.Y.S.2d 395 [3d Dept. 2006] ; see generally Matter of Chrysler v. Fabian , 66 A.D.3d 1446, 1447, 885 N.Y.S.2d 861 [4th Dept. 2009], lv denied 13 N.Y.3d 715, 2010 WL 92454 [2010] ).
The mother also contends that the court erred in failing to modify the prior custody and visitation order by setting forth an appropriate supervised visitation schedule for her with the child. However, the mother did not request that relief in her petition (see generally Matter of Sharon V. v. Melanie T. , 85 A.D.3d 1353, 1356, 925 N.Y.S.2d 231 [3d Dept. 2011] ; Matter of Moorhead v. Coss , 17 A.D.3d 725, 726, 792 N.Y.S.2d 709 [3d Dept. 2005] ; Matter of Michael G.B. v. Angela L.B. , 219 A.D.2d 289, 295, 642 N.Y.S.2d 452 [4th Dept. 1996] ).