Opinion
2014-02-5
In the Matter of Stacy LORE, appellant, v. Louis SCLAFANI, respondent.
Kevin R. Greco, Poughkeepsie, N.Y., for appellant. Debra M. Frangk, Poughkeepsie, N.Y., attorney for the child.
Kevin R. Greco, Poughkeepsie, N.Y., for appellant.Debra M. Frangk, Poughkeepsie, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Posner, J.), entered January 10, 2013, which dismissed her petition to modify an order of custody of the same court entered June 28, 2012, on the consent of the parties.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, for a hearing on the mother's petition and a determination as to the best interests of the child.
The mother's petition to modify an order of custody sufficiently alleges a change in circumstances. Accordingly, the Family Court erred in dismissing the petition for failure to state a cause of action ( see Matter of Dana H. v. James Y., 89 A.D.3d 844, 845, 932 N.Y.S.2d 517; Matter of Gilleo v. Williams, 71 A.D.3d 1023, 1023, 897 N.Y.S.2d 203). The mother's allegations as to the subject child's alarming behavior after the underlying custody agreement went into effect warrant a hearing as to whether the best interests of the child require a change in custody ( see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Shannon J. v. Aaron P., 111 A.D.3d 829, 975 N.Y.S.2d 152; Matter of Dana H. v. James Y., 89 A.D.3d at 846, 932 N.Y.S.2d 517; Ramos v. Andino, 19 A.D.3d 424, 425, 796 N.Y.S.2d 407). MASTRO, J.P., RIVERA, SGROI and COHEN, JJ., concur.