| Matter of Leichter-Kessler v Kessler |
| 2010 NY Slip Op 02795 [71 AD3d 1148] |
| March 30, 2010 |
| Appellate Division, Second Department |
| In the Matter of Freda Leichter-Kessler,Appellant, v Charles Kessler, Respondent. |
—[*1] Charles Kessler, Irvington, N.Y., respondent pro se. Naomi R. Duker, White Plains, N.Y., attorney for the child.
In related custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals, as limited by her brief, from (1) so much of an order of the Family Court,Westchester County (Klein, J.), dated January 26, 2009, as, without a hearing, granted thefather's motion to dismiss her petition, inter alia, for sole custody of the subject child, and (2)stated portions of an order of the same court dated June 4, 2009, which, without a hearing,among other things, denied that branch of her motion which was to remove the attorney for thechild.
Ordered that the orders are affirmed insofar as appealed from, without costs ordisbursements.
The Family Court properly dismissed, without a hearing, the mother's petition, inter alia, forsole custody of the subject child. Modification of an existing custody or visitation arrangement ispermissible only upon a showing that there has been a change in circumstances such that amodification is necessary to ensure the continued best interests and welfare of the child. A partyseeking a change in visitation or custody is not automatically entitled to a hearing, but mustmake an evidentiary showing sufficient to warrant a hearing (see Matter of Grant vHunter, 64 AD3d 779 [2009]; Matter of Riedel v Riedel, 61 AD3d 979 [2009]).Here, the mother's assertions were unsubstantiated, conclusory, and flatly contradicted by therecord. Accordingly, she failed to make the requisite showing (see Matter of Grant vHunter, 64 AD3d 779 [2009]; Matter of Reilly v Reilly, 64 AD3d 660 [2009];Matter of Mennuti v Berry, 59 AD3d 625 [2009]; Matter of Blackstock v Price,51 AD3d 914 [2008]; Matter of Davis v Venditto, 45 AD3d 837 [2007]; Shapira vShapira, 283 AD2d 477, 478 [2001]).
The Family Court properly declined to remove the attorney for the child based on themother's unsubstantiated allegations of bias (see Matter of Damien P.C. v Jennifer H.S.,57 AD3d 295 [2008]; Matter of Aaliyah Q., 55 AD3d 969, 971 [2008]; Matter ofBrittany W., 25 AD3d 560 [2006]).[*2]
The mother's remaining contentions are without merit.Fisher, J.P., Leventhal, Belen and Sgroi, JJ., concur.