44 A.D.3d 490
N.Y. App. Div.
2007

In the Matter of SERGEI P., Appellant, v SOFIA M., Respondent.

Appellate Division of the Supreme Court of New York, First Department

October 24, 2006

843 NYS2d 603

Karen I. Lupuloff, J.

Concur—Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.

In the Matter of SERGEI P., Appellant, v SOFIA M., Respondent. [843 NYS2d 603]

Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about October 24, 2006, which, without a hearing, dismissed the petition for change of custody, unanimously affirmed, without costs.

A parent seeking a change of custody is not automatically entitled to a hearing (Matter of Coutsoukis v Samora, 265 AD2d 482 [1999]). Where parents enter into a formal custody agreement, it will not be set aside without a showing of a sufficient change in circumstances since the time of the stipulation, and unless the proposed modification is shown to be in the best interests of the child (Smoczkiewicz v Smoczkiewicz, 2 AD3d 705 [2003]). Furthermore, no court will modify such an order of custody granted on stipulation, absent such showings (see Matter of Watts v Watts, 290 AD2d 822, 823-824 [2002], lv denied 97 NY2d 614 [2002]; Family Ct Act § 467 [b]). Here, in settlement of a prior enforcement proceeding, the parties entered into a stipulation on May 16, 2005, reinstated on May 16, 2006, in which petitioner agreed that custody would remain with respondent. Petitioner has not alleged a sufficient change of circumstances since that time to warrant a hearing on a change of custody. The court correctly stated that it would consider future applications for a change of custody if the alleged conduct by respondent was found to continue. Concur—Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.