Summary
affirming dismissal of modification of custody petition without a hearing where father "failed to allege a sufficient change in circumstances"
Summary of this case from R.M. v. C.C.Opinion
2014-12-17
In the Matter of Paul CASTAGNINI, appellant, v. Lori M. HYMAN–HUNT, respondent.
Peter Dailey, New York, N.Y., for appellant. Tennille M. Tatum–Evans, New York, N.Y., for respondent.
Peter Dailey, New York, N.Y., for appellant.Tennille M. Tatum–Evans, New York, N.Y., for respondent.
Appeal from an order of the Family Court, Kings County (Michael L. Katz, J.), dated November 27, 2012. The order, without a hearing, dismissed the father's petition to modify so much of a prior order of that court as terminated his visitation.
ORDERED that the order dated November 27, 2012, is affirmed, without costs or disbursements.
Where a court has previously sanctioned a custody or visitation arrangement, the “ ‘[m]odification of [that] arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child’ ” ( Matter of Mazzola v. Lee, 76 A.D.3d 531, 531, 906 N.Y.S.2d 83, quoting Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1148–1149, 897 N.Y.S.2d 639). Generally, an evidentiary hearing is necessary in determining whether a modification of visitation is warranted ( see Matter of Figueroa v. Lewis, 81 A.D.3d 823, 824, 916 N.Y.S.2d 833; Matter of Perez v. Sepulveda, 51 A.D.3d 673, 673, 857 N.Y.S.2d 659). However, a parent seeking a change of visitation is not automatically entitled to a hearing, but must make an evidentiary showing of a change in circumstances sufficient to warrant a hearing ( see Matter of Figueroa v. Lewis, 81 A.D.3d at 824, 916 N.Y.S.2d 833; Matter of Ross v. Ross, 68 A.D.3d 878, 878–879, 890 N.Y.S.2d 127; Matter of Reilly v. Reilly, 64 A.D.3d 660, 660, 881 N.Y.S.2d 895; Matter of Rodriguez v. Hangartner, 59 A.D.3d 630, 630–631, 874 N.Y.S.2d 501). Here, the father failed to allege a sufficient change in circumstances between the issuance of a custody order by the Family Court on May 8, 2009, and the filing of his petition. Accordingly, the Family Court properly dismissed the petition without a hearing ( see Matter of Collazo v. Collazo, 78 A.D.3d 1177, 911 N.Y.S.2d 658; Matter of Walberg v. Rudden, 14 A.D.3d 572, 787 N.Y.S.2d 666). RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur.