Matter of Engelhart v. BowmanMatter of Engelhart v. Bowman
Mulvey, J. Appeal from an order of the Family Court of Albany County (Maney, J.), entered November 24, 2015, which, sua sponte, dismissed petitioner‘s application, in a proceeding pursuant to
Petitioner (hereinafter the mother) and respondent (hereinafter the father) divorced in March 2013. Pursuant to the terms of their judgment of divorce, the father received sole custody of the parties’ two children (born in 2006 and 2007) and the mother received parenting time on Wednesday evenings and alternate weekends. The mother appealed from the judgment of divorce, and, on appeal, this Court modified the judgment to the extent of awarding the mother additional parenting time on certain holidays and school vacations (Bowman v Engelhart, 112 AD3d 1187, 1189-1190 [2013]).
In June 2015, the mother commenced this proceeding pursuant to
“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 children” (Matter of Patricia P. v Dana Q., 106 AD3d 1386, 1386-1387 [2013] [citations omitted]; accord Matter of Hill v Dean, 135 AD3d 990, 994 [2016]). The petitioner “bears the burden of demonstrating such change in circumstances, and
In her petition, the mother alleged, among other things, that the father was charged with reckless endangerment, vehicular assault and driving while intoxicated after he crashed a car in January 2015, thereby causing injury to himself and his three passengers. The mother also alleged that the father engaged in a course of conduct that alienated the children from her, that the children desired to spend more time with her and that her work schedule had become more flexible since completing her medical residency. If established after a hearing, these allegations could afford a basis for modifying the prior custodial arrangement and, thus, Family Court erred in dismissing the petition without first conducting a hearing (see Matter of Harrell v Fox, 137 AD3d 1352, 1353-1354 [2016]; Matter of Christopher B. v Patricia B., 75 AD3d at 872-873). Given that the mother‘s petition places both legal and physical custody in issue, we further note that if, after a hearing, the mother makes the requisite showing of a change in circumstances sufficient to warrant a best interests inquiry and Family Court determines that joint legal custody is not feasible, it is “‘incumbent upon Family Court to determine a custodial arrangement based upon the best interests of the child[ren] despite the absence’ of a petition definitively seeking sole custody” (Matter of Kowatch v Johnson, 68 AD3d 1493, 1495 [2009], lv denied 14 NY3d 704 [2010], quoting Matter of Scala v Parker, 304 AD2d 858, 860 [2003]; see Matter of Mahoney v Regan, 100 AD3d 1237, 1237-1238 [2012], lv denied 20 NY3d 859 [2013]).
We are unpersuaded by the mother‘s remaining contention that Family Court‘s dismissal of the petition without a hearing was precipitated by bias.
Lahtinen, J.P., McCarthy and Devine, JJ., concur; Clark, J., not taking part.
Ordered that the