Opinion
07-07-2016
In the Matter of April MILLER, Appellant, v. Chad BUSH, Respondent.
Lisa A. Natoli, Norwich, for appellant.
Lisa A. Natoli, Norwich, for appellant.
Before: LAHTINEN, J.P., McCARTHY, GARRY, CLARK and MULVEY, JJ.
Opinion
CLARK, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.), entered June 29, 2015, which sua sponte dismissed petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody and visitation.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of a daughter born in 2002. In 2014, following an incident in which the mother became intoxicated in the child's presence and threatened to hurt herself, the father commenced a Family Ct. Act article 6 proceeding seeking to modify a prior order of custody in which the parties shared joint legal custody and the mother had primary physical custody. In January 2015, following a fact-finding hearing, Family Court awarded the father sole legal and physical custody of the child and granted the mother parenting time on alternating weekends, with such visits to be supervised by the child's maternal grandmother.
At the time of the incident, a child protective services investigation was pending against the mother based on a report alleging that she abused alcohol and/or drugs. The report was ultimately substantiated.
--------
Thereafter, in June 2015, the mother filed the instant petition seeking increased and unsupervised parenting time with the child, as well as involvement in the child's “school, medical [and] dental.” Without conducting a hearing, Family Court sua sponte dismissed the petition, finding that the mother “ha[d] not pleaded any sufficient change of circumstances such that the child[ ]'s best interests require[d] the modification of the order entered [five] months [prior].” The mother appeals.
“ ‘In any modification proceeding, the threshold issue is whether there has been a change in circumstances since the prior custody order significant enough to warrant a review of the issue of custody to ensure the continued best interests of the child[ ]’ ” (Matter of Tyrel v. Tyrel, 132 A.D.3d 1026, 1026, 17 N.Y.S.3d 198 [2015], quoting Matter of Patricia P. v. Dana Q., 106 A.D.3d 1386, 1386, 965 N.Y.S.2d 678 [2013] ). While an evidentiary hearing is not required in every case, a hearing is generally “necessary and should be conducted unless the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and the court has sufficient information to undertake a comprehensive independent review of the child[ ]'s best interests” (Matter of Chittick v. Farver, 279 A.D.2d 673, 675, 719 N.Y.S.2d 305 [2001] [internal citation omitted]; see Matter of Harrell v. Fox, 137 A.D.3d 1352, 1354, 26 N.Y.S.3d 800 [2016] ; Matter of Freedman v. Horike, 107 A.D.3d 1332, 1333, 969 N.Y.S.2d 193 [2013] ). In determining whether a pro se petitioner made a sufficient evidentiary showing to warrant a hearing, we construe the pleadings liberally and afford the petitioner the benefit of every favorable inference (see Matter of Harrell v. Fox, 137 A.D.3d at 1354, 26 N.Y.S.3d 800; Matter of Tod ZZ. v. Paula ZZ., 113 A.D.3d 1005, 1006, 979 N.Y.S.2d 710 [2014] ).
In her pro se petition, the mother alleged that she had moved into an apartment with the child's maternal grandmother, had enrolled as a full-time student and was attending “[a]lcohol counseling.” Inasmuch as the mother's alcohol abuse was a primary factor in Family Court's January 2015 custody determination, the mother's factual allegations of improvement, construed liberally and if established after a hearing, could afford a basis for awarding the mother increased parenting time, unsupervised parenting time and/or access to the child's medical and educational records. Accordingly, we find that Family Court erred in dismissing the mother's petition without a hearing (see Matter of Ford v. Baldi, 123 A.D.3d 1399, 1400, 999 N.Y.S.2d 605 [2014] ; Matter of Freedman v. Horike, 107 A.D.3d at 1333–1334, 969 N.Y.S.2d 193 ; Matter of Giovanni v. Hall, 86 A.D.3d 676, 677, 927 N.Y.S.2d 427 [2011] ).
As a final matter, we note that, although not required, the appointment of an attorney for the child is the “strongly preferred practice” in contested custody proceedings (Matter of Ames v. Ames, 97 A.D.3d 914, 916, 947 N.Y.S.2d 836 [2012], lv. denied 20 N.Y.3d 852, 2012 WL 5949777 [2012] ; accord Matter of Harrell v. Fox, 137 A.D.3d at 1355, 26 N.Y.S.3d 800; see Family Ct. Act § 249[a] ). Given the circumstances leading to the prior order of custody and visitation and that the mother is now seeking increased and/or unsupervised parenting time, we urge Family Court to, upon remittal, appoint an attorney for the child.
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Cortland County for further proceedings not inconsistent with this Court's decision.
LAHTINEN, J.P., McCARTHY, GARRY and MULVEY, JJ., concur.