Opinion
2014-05-21
In the Matter of Theresa YUAN, appellant, v. Stephen SAWYER, respondent.
Bruce A. Young, New York, N.Y., for appellant. Preston Stutman & Partners, P.C., New York, N.Y. (Robert M. Preston of counsel), for respondent.
Bruce A. Young, New York, N.Y., for appellant. Preston Stutman & Partners, P.C., New York, N.Y. (Robert M. Preston of counsel), for respondent.
John C. Macklin, New Hyde Park, 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, Queens County (Moriber, Ct. Atty. Ref.), dated July 26, 2013, which, without a hearing, dismissed her petition to modify a prior order of the same court (Ebrahimoff, Ct. Atty. Ref.), dated March 19, 2010, as amended by another order of the same court (Stanton, Ct. Atty. Ref.), dated April 23, 2012, so as to award her sole custody of the parties' child and to award only daytime visitation to the father until he obtains “suitable housing,” denied her request to remove and replace the attorney for the child, and directed her to obtain permission from a Family Court judge before filing any future petitions.
ORDERED that the order dated July 26, 2013, is affirmed, with costs.
The Family Court providently exercised its discretion in dismissing, without a hearing, the mother's petition to modify an existing custody order so as to award her sole custody of the subject child and to award only daytime visitation to the father until he obtains “suitable housing.” The mother was required to make “an evidentiaryshowing sufficient to warrant a hearing” based upon a subsequent change in circumstances (Matter of Grant v. Hunter, 64 A.D.3d 779, 779, 884 N.Y.S.2d 763), such that a modification is necessary to ensure the continued best interests and welfare of the child ( see Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141). The mother failed to do so ( see Matter of Palmiotti v. Piscitelli, 100 A.D.3d 637, 638, 953 N.Y.S.2d 255;Matter of Dowgiallo v. Williams, 99 A.D.3d 708, 951 N.Y.S.2d 404;Matter of Aronowich–Culhane v. Fournier, 94 A.D.3d 1114, 943 N.Y.S.2d 174;Matter of Mazurkiewicz v. Pindor–Mazurkiewicz, 80 A.D.3d 615, 914 N.Y.S.2d 657).
The mother's remaining contentions are either without merit, not properly before this Court, or need not be addressed in light of our determination. MASTRO, J.P., SKELOS, COHEN and LaSALLE, JJ., concur.