Matter of Wakefield v Wakefield

2010 NY Slip Op 05569 [74 AD3d 1213]

June 22, 2010

Appellate Division, Second Department

As corrected through Wednesday, August 25, 2010

In the Matter of Debra M. Wakefield, Appellant, v ArthurR. Wakefield, Respondent.

—[*1]Mildred J. Michalczyk, East Farmingdale, N.Y., for appellant.

Theresa A. Mari, Huntington, N.Y., attorney for the child.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, aslimited by her brief, from so much of an order of the Family Court, Suffolk County (Boggio, Ct.Atty. Ref.), dated May 11, 2009, as, without a hearing, granted the father's motion to dismiss heramended petition to modify the parties' judgment of divorce so as to award her sole custody ofthe parties' child.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that a modification is necessary to ensure thecontinued best interests and welfare of the child (see Trinagel v Boyar, 70 AD3d 816,816 [2010]; Matter of Delano v Desimone, 60 AD3d 673, 673 [2009]; Matter of Zeisv Slater, 57 AD3d 793, 794 [2008]). The best interests of the child are determined by areview of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171[1982]; Matter of Ross v Ross, 68 AD3d 878, 878 [2009]). A parent seeking a change ofcustody is not automatically entitled to a hearing, but must make some evidentiary showing of achange in circumstances sufficient to warrant a hearing (see Matter of Ross v Ross, 68AD3d at 878-879). Here, the mother failed to allege a change of circumstances sufficient towarrant a hearing (see Matter of Pignataro v Davis, 8 AD3d 487 [2004]; Matter ofRosenberg v Rosenberg, 261 AD2d 623 [1999]). Accordingly, the Family Court properlygranted, without a hearing, the father's motion to dismiss the mother's amended petition tomodify the parties' judgment of divorce so as to award her sole custody of the parties' child.Skelos, J.P., Angiolillo, Dickerson and Leventhal, JJ., concur.