| Matter of Lopez v Infante |
| 2008 NY Slip Op 08129 [55 AD3d 837] |
| October 21, 2008 |
| Appellate Division, Second Department |
| In the Matter of Genara Lopez, Appellant, v Juan R. Infante,Respondent. |
—[*1] Paul B. Guttenberg, Syosset, N.Y., for respondent. Elaine Miller, Great Neck, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from anorder of the Family Court, Nassau County (Eisman, J.), dated August 10, 2007, which, without ahearing, dismissed, with prejudice, her petition to modify a prior order, inter alia, awarding custody oftwo of the parties' children to the father.
Ordered that the order is affirmed, without costs or disbursements.
Where possible, custody should be established on a long term basis, "at least so long as thecustodial 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]; see Jackson v Jackson, 31 AD3d 386 [2006]). Moreover, whereparents enter into an agreement concerning custody, it will not be set aside unless there is a sufficientchange in circumstances since the time of the stipulation and unless the modification of the custodyagreement is in the best interests of the child (see Smoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2003]). Anoncustodial parent seeking a change of custody is not entitled to a hearing without making someevidentiary showing sufficient to warrant a hearing (see Matter of Bauman v Abbate, 48 AD3d 679, 680 [2008]; DiVittorio v DiVittorio, 36 AD3d 848,849 [2007]; McNally v McNally, 28AD3d 526, 527 [2006]). Here, the mother failed to [*2]makesuch a showing.
The mother's remaining contentions are without merit. Fisher, J.P., Covello, McCarthy andLeventhal, JJ., concur.