Opinion
No. CAF 09-00622.
April 30, 2010.
Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered February 25, 2009 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.
ANDREW J. CORNELL, WELLSVILLE, FOR PETITIONER-APPELLANT.
FERN S. ADELSTEIN, LAW GUARDIAN, OLEAN, FOR LOGAN W.
Present: Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Contrary to the contention of petitioner mother, Family Court properly granted respondent father's motion to dismiss the petition seeking to modify a prior custody order without conducting a hearing on the petition. "A hearing is not automatically required whenever a parent seeks modification of a custody order" ( Matter of Wurmlinger v Freer, 256 AD2d 1069; see David W. v Julia W., 158 AD2d 1, 6-7). Where, as here, the petitioner fails to demonstrate a sufficient "change in circumstances . . ., there is no basis for modification and dismissal of [the] petition is warranted" ( Matter of Reese v Jones, 249 AD2d 676, 677; see Matter of Di Fiore v Scott, 2 AD3d 1417).
The mother failed to preserve for our review her further contention that the court abused its discretion in dismissing the petition without conducting a Lincoln hearing inasmuch as she failed to request such a hearing ( see Matter of Lopez v Robinson, 25 AD3d 1034, 1037; Matter of Picot v Barrett, 8 AD3d 288, 289). In any event, we reject that contention ( see Matter of Charles M.O. v Heather S.O., 52 AD3d 1279; Matter of Thompson v Thompson, 267 AD2d 516, 519).