| Matter of Hughes v Davis |
| 2009 NY Slip Op 09760 [68 AD3d 1674] |
| December 30, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of LaKicia M. Hughes, Appellant, v Lionel L. Davis,Respondent. |
—[*1] Christopher J. Brechtel, Law Guardian, Buffalo, for Shaka D.
Appeal from an order of the Family Court, Erie County (Sharon M. LoVallo, J.), enteredApril 29, 2008 in a proceeding pursuant to Family Court Act article 6. The order grantedrespondent's motion and dismissed the petition.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied, the petition is reinstated, and the matter is remitted to FamilyCourt, Erie County, for further proceedings on the petition.
Memorandum: Upon her return from active military duty, petitioner mother filed a petitionseeking to modify a prior order of custody. Family Court granted respondent father's motion todismiss the petition without conducting a hearing based on its determination that the mother had"failed to show a change of circumstances." We conclude, based on the recent enactment ofFamily Court Act § 651 (f), that the petition should be reinstated.
It is well settled that, in seeking to modify an existing order of custody, "[t]he petitionermust make a sufficient evidentiary showing of a change in circumstances to require a hearing onthe issue whether the existing custody order should be modified" (Matter of Di Fiore v Scott, 2 AD3d1417, 1417-1418 [2003] [internal quotation marks omitted]). Pursuant to Family Court Act§ 651 (f) (3), "the return of the parent from active military service, deployment ortemporary assignment shall be considered a substantial change in circumstances. Upon therequest of either parent, the court shall determine on the basis of the child's best interests whetherthe custody judgment or order previously in effect should be modified" (see DomesticRelations Law § 75-l [3]; § 240 [1] [a-2] [3]). Here, the mother alleged thatshe had returned from active military duty and thus made a sufficient evidentiary showing of asubstantial change in circumstances (see generally Di Fiore, 2 AD3d 1417 [2003]).Present—Martoche, J.P., Smith, Fahey, Carni and Pine, JJ.