Opinion
2002-08183
Submitted May 16, 2003.
June 2, 2003.
In a matrimonial action in which the parties were divorced by judgment entered February 28, 2002, the defendant father appeals from an order of the Supreme Court, Suffolk County (McNulty, J.), dated August 2, 2002, which denied, without a hearing, his motion, inter alia, for a change of custody of the parties' son from the plaintiff mother to him.
Waldvogel Peterson, Smithtown, N.Y. (J. Gary Waldvogel of counsel), for appellant.
Long, Tuminello, Besso, Seligman, Quinlan Werner, Bayshore, N.Y. (Kevin Werner of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Contrary to the father's contention, the Supreme Court properly denied his motion for a change of custody of the parties' son without conducting a hearing. A parent seeking a change of custody is not automatically entitled to a hearing, but must make a sufficient evidentiary showing to warrant a hearing (see Matter of Johnson v. Semple, 273 A.D.2d 311; Matter of Ann C. v. Debra S., 221 A.D.2d 338). Here, the father failed to make such a showing (see Matter of Johnson v. Semple, supra).
Moreover, under the circumstances of this case, it is unnecessary to remit the matter for the appointment of a law guardian (see Matter of Farnham v. Farnham, 252 A.D.2d 675; Matter of Newton v. Newton, 210 A.D.2d 337).
ALTMAN, J.P., FLORIO, ADAMS and RIVERA, JJ., concur.