Opinion
06-22-2016
In the Matter of Luz WILLIAMS, appellant, v. Peter NORFLEET, respondent.
Salvatore C. Adamo, New York, NY, for appellant. Gary E. Eisenberg, New City, NY, for respondent. Harvey A. Eilbaum, New City, NY, attorney for the child.
Salvatore C. Adamo, New York, NY, for appellant.
Gary E. Eisenberg, New City, NY, for respondent.
Harvey A. Eilbaum, New City, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Appeal from an order of the Family Court, Rockland County (William P. Warren, J.), entered April 21, 2015. The order, without a hearing, granted the father's motion to dismiss the mother's amended petition to modify a prior custody order of that court dated April 1, 2013, awarding sole custody of the parties' two children to the father, so as to award the mother sole custody.
ORDERED that the order entered April 21, 2015, is reversed, on the law, without costs or disbursements, the father's motion to dismiss the mother's amended petition is denied, and the matter is remitted to the Family Court, Rockland County, for a hearing and, thereafter, a new determination on the amended petition.
“A party seeking modification of an existing custody or visitation order must demonstrate that there has been a subsequent change of circumstances such that modification is required to protect the best interests of the child” (Matter of Dunne v. Dunne, 137 A.D.3d 1275, 1276, 28 N.Y.S.3d 707 ; see Matter of Gelfarb v. Gelfarb, 133 A.D.3d 598, 18 N.Y.S.3d 548 ). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Fallarino v. Ayala, 41 A.D.3d 714, 714–715, 838 N.Y.S.2d 176 ).
A parent seeking a change of custody is not automatically entitled to a hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Hongach v. Hongach, 44 A.D.3d 664, 841 N.Y.S.2d 888 ; Matter of Miller v. Lee, 225 A.D.2d 778, 639 N.Y.S.2d 852 ). The mother presented sufficient evidence of a change of circumstances, including the father's alleged interference with her visitation rights, so as to warrant a hearing (see Matter of Ruiz v. Sciallo, 127 A.D.3d 1205, 1206, 7 N.Y.S.3d 511 ; Matter of Weinberg v. Weinberg, 52 A.D.3d 616, 861 N.Y.S.2d 70 ; Matter of Nikolic v. Ingrassia, 47 A.D.3d 819, 850 N.Y.S.2d 539 ; Matter of Markey v. Bederian, 274 A.D.2d 816, 710 N.Y.S.2d 482 ; Matter of King v. King, 225 A.D.2d 697, 639 N.Y.S.2d 465 ; Matter of Sullivan v. Sullivan, 216 A.D.2d 627, 627 N.Y.S.2d 829 ). “ ‘[W]illful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent’ ” (Matter of Ruiz v. Sciallo, 127 A.D.3d at 1206, 7 N.Y.S.3d 511, quoting Matter of Joosten v. Joosten, 282 A.D.2d 748, 748, 724 N.Y.S.2d 335 ). A hearing is further warranted to ascertain whether the father knowingly left the children alone with the maternal grandfather, or with someone who would leave the children alone with the maternal grandfather, in light of child sexual abuse allegations against the maternal grandfather, as well as a previous warning from the Family Court to avoid leaving the children in the maternal grandfather's sole care. If true, such conduct may evince such poor judgment on the father's part and disregard for the potential danger to the children that it would be highly relevant to the question of custody.
Accordingly, the Family Court erred in granting, without a hearing, the father's motion to dismiss the mother's amended petition to modify the prior custody order dated April 1, 2013.