| Matter of Bauman v Abbate |
| 2008 NY Slip Op 01539 [48 AD3d 679] |
| February 19, 2008 |
| Appellate Division, Second Department |
| In the Matter of Glenn Bauman, Respondent, v DarleneAbbate, Appellant. |
—[*1] Judd & Moss, P.C., Ronkonkoma, N.Y. (Francine H. Moss of counsel), forrespondent.
In a child custody proceeding, the mother appeals, as limited by her brief, from so much ofan order of the Supreme Court, Suffolk County (Bivona, J.), dated March 8, 2007, as denied,without a hearing, that branch of her motion which was to modify the provisions of a so-orderedstipulation dated June 4, 2004, to award her sole custody of the parties' child.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2003 the father filed a petition in the Supreme Court, Suffolk County, seeking to obtaincustody of the parties' child. That petition was resolved by a stipulation, so-ordered by theSupreme Court on June 4, 2004, inter alia, awarding the father custody of the child, with themother having liberal visitation.
In January 2007 the mother made a motion, which the father opposed, inter alia, to modifythe so-ordered stipulation to award her sole custody of the child. The Supreme Court denied themotion without conducting a hearing, and the mother now appeals. We affirm.
The Supreme Court properly denied that branch of the mother's motion which was to modifythe stipulation to award her sole custody of the parties' child without conducting a hearing.Where parents enter into an agreement regarding custody, it will not be set aside unless there is asufficient change in circumstances since the time of the stipulation and unless the modification ofthe custody arrangement is in the child's best interests (see Pambianchi v Goldberg, 35 AD3d 688, 689 [2006]; [*2]Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2003]).The mother failed to sustain her burden on those issues. Moreover, a noncustodial parent seekinga change of custody is not automatically entitled to a hearing, but must make some evidentiaryshowing sufficient to warrant one (seeDiVittorio v DiVittorio, 36 AD3d 848, 849 [2007]; McNally v McNally, 28 AD3d 526, 527 [2006]). Here, the motherfailed to make such a showing (seeDiVittorio v DiVittorio, 36 AD3d 848, 849 [2007]; Matter of El-Sheemy v El-Sheemy, 35 AD3d 738, 739 [2006]; Jackson v Jackson, 31 AD3d 386[2006]).
The mother's remaining contentions are without merit. Skelos, J.P., Fisher, Dillon andMcCarthy, JJ., concur.