| Matter of Deochand v Deochand |
| 2011 NY Slip Op 00222 [80 AD3d 609] |
| January 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of Basmattie Deochand, Appellant, v HemchandraDeochand, Respondent. |
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In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of theFamily Court, Kings County (O'Shea, J.), dated March 22, 2010, which, without a hearing, denied herpetition to modify an order of the same court (Morganstern, J.), dated May 14, 2003, entered upon theparties' consent, awarding joint legal custody of the subject child, with residential custody to the mother,so as to award her sole legal custody of the child, and dismissed the proceeding.
Ordered that the order dated March 22, 2010, is affirmed, without costs or disbursements.
By order of the Family Court dated May 14, 2003, entered on the parties' consent, the mother andfather were awarded joint legal custody of their child with residential custody awarded to the mother.The mother subsequently petitioned for a modification of the custody order so as to award her solelegal custody of the subject child.
"Modification of an existing custody arrangement is permissible only upon a showing that there hasbeen a change in circumstances such that a modification is necessary to ensure the continued bestinterests and welfare of the child" (Matter ofPignataro v Davis, 8 AD3d 487, 488 [2004]; see Eschbach v Eschbach, 56 NY2d167, 171 [1982]; Matter of Ruggiero vNoe, 77 AD3d 959, 960 [2010]). "A party seeking a change in . . . custody isnot automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant ahearing" (Matter of Leichter-Kessler vKessler, 71 AD3d 1148, 1149 [2010]; see Matter of Mazzola v Lee, 76 AD3d 531, 531 [2010]; Matter of Riedel v Riedel, 61 AD3d979 [2009]).
In this case the mother failed to make a sufficient evidentiary showing to support her conclusoryand nonspecific allegations that a change in circumstances justified a hearing on the issue of whetherawarding her sole custody would be in the best interests of the child (see Matter of Blackstock v Price, 51 AD3d914, 915 [2008]; Matter of Davis vVenditto, 45 AD3d 837, 838 [2007]; Matter of El-Sheemy v El-Sheemy, 35 AD3d 738, 739 [2006]; see also Matter of Mennuti v Berry, 59AD3d 625 [2009]). Accordingly, the Family Court providently exercised its discretion in denying,without a hearing, her petition to modify the existing custody order. Mastro, J.P., Rivera, Austin andRoman, JJ., concur.