Simmons v. Budney

Mar 1, 2004
Versions:5 A.D.3d 389
772 N.Y.S.2d 543

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Wright, J.), dated November 6, 2002, which denied her petition to modify an order of the same court (Knipps, J.) dated September 11, 2000, awarding the father custody of the parties’ child, and dismissed the petition.

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

*390Custody of a child should be established on a long-term basis, “at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian” (Obey v Degling, 37 NY2d 768, 770 [1975]). A noncustodial parent seeking a change of custody is not entitled to a hearing without making some evidentiary showing sufficient to warrant a hearing (see Matter of Coutsoukis v Samora, 265 AD2d 482 [1999]; Teuschler v Teuschler, 242 AD2d 289, 290 [1997]; Matter of Miller v Lee, 225 AD2d 778 [1996]; Matter of Ann C. v Debra S., 221 AD2d 338 [1995]; David W. v Julia W., 158 AD2d 1, 7 [1990]). Under the circumstances of this case, the Family Court properly denied the mother’s petition without a full evidentiary hearing.

The mother’s remaining contentions are without merit. Altman, J.P., S. Miller, Luciano and Rivera, JJ., concur.