Opinion
668 CAF 17–01729
06-08-2018
In the Matter of Cindy A. KRIEGAR, Petitioner–Appellant, v. Timothy MCCARTHY, Respondent–Respondent.
ROBERT A. DINIERI, CLYDE, FOR PETITIONER–APPELLANT. LORENZO NAPOLITANO, ROCHESTER, ATTORNEY FOR THE CHILDREN.
ROBERT A. DINIERI, CLYDE, FOR PETITIONER–APPELLANT.
LORENZO NAPOLITANO, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the petition is reinstated, and the matter is remitted to Family Court, Wayne County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner mother filed a petition to, inter alia, modify a prior order of joint legal custody by awarding her sole legal custody. Respondent father moved to dismiss the petition, and Family Court granted the motion. We agree with the mother that the court erred in granting the motion and summarily dismissing her petition.
It is well settled that " ‘[a] hearing is not automatically required whenever a parent seeks modification of a custody order’ " ( Matter of Di Fiore v. Scott, 2 A.D.3d 1417, 1417, 770 N.Y.S.2d 248 [4th Dept. 2003] ). In order to survive a motion to dismiss and warrant a hearing, " ‘a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child’ " ( Matter of Gelling v. McNabb, 126 A.D.3d 1487, 1487, 6 N.Y.S.3d 887 [4th Dept. 2015] ; see Di Fiore, 2 A.D.3d at 1417–1418, 770 N.Y.S.2d 248 ). When faced with such a motion, "the court must give the pleading a liberal construction, accept the facts alleged therein as true, accord the nonmoving party the benefit of every favorable inference, and determine only whether the facts fit within a cognizable legal theory" ( Matter of Machado v. Tanoury, 142 A.D.3d 1322, 1323, 38 N.Y.S.3d 356 [4th Dept. 2016] ). Here, we conclude that the mother adequately alleged a change in circumstances warranting a modification of the prior order, i.e., that the father has repeatedly and consistently neglected to exercise his right to full visitation and has endangered the children by exposing them to individuals who engaged in drug use (see generally Matter of Kelley v. Fifield, 159 A.D.3d 1612, 1613–1614, 72 N.Y.S.3d 754 [4th Dept. 2018] ; Matter of Farner v. Farner, 152 A.D.3d 1212, 1214, 60 N.Y.S.3d 613 [4th Dept. 2017] ; Machado, 142 A.D.3d at 1323, 38 N.Y.S.3d 356). We therefore reverse the order, deny the motion, reinstate the petition and remit the matter to Family Court for a hearing thereon.