Matter of Resnick v. Ausburn

Dec 3, 2014
2013-10258
Versions:123 A.D.3d 728
998 N.Y.S.2d 405

Appeal from an order of the Family Court, Nassau County (Julianne T. Capetola, J.), dated October 15, 2013. The order granted, without a hearing, the father‘s cross motion to dismiss the mother‘s petition to modify a prior order of custody so as to award her custody of the subject child.

Ordered that the order is affirmed, without costs or disbursements.

“To warrant modification of an existing custody arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child” (Matter of Begy v Begy, 115 AD3d 951, 951 [2014]; see Family Ct Act § 652 [a]; Matter of Hixenbaugh v Hixenbaugh, 111 AD3d 636, 637 [2013]). “The best interests of the child are determined by a review of the totality of the circumstances” (Matter of Hixenbaugh v Hixenbaugh, 111 AD3d at 637 [internal quotation marks omitted]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). “A party seeking a change in visitation or custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing” (Matter of Acworth v Kollmar, 119 AD3d 676, 677 [2014] [internal quotation marks omitted]; see Sirabella v Sirabella, 95 AD3d 1296, 1296 [2012]). Here, the mother failed to make an evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Kollmar v Kollmar, 100 AD3d 712, 713 [2012]; Matter of Wakefield v Wakefield, 74 AD3d 1213, 1213 [2010]; Salick v Salick, 66 AD3d 757, 757-758 [2009]). Accordingly, the Family Court properly granted, without a hearing, the father‘s cross motion to dismiss the mother‘s petition to modify a prior order of custody so as to award her custody of the subject child. Balkin, J.P., Leventhal, Hall and Hinds-Radix, JJ., concur.