| Matter of Schnock v Sexton |
| 2012 NY Slip Op 08859 [101 AD3d 1437] |
| December 20, 2012 |
| Appellate Division, Third Department |
| In the Matter of Christin Ameilynn Schnock,Appellant, v George Brian Sexton, Respondent. |
—[*1] The Arquette Law Firm, PLLC, Clifton Park (Tammy J. Arquette of counsel), for respondent. Pamela M. Babson, Saratoga Springs, attorney for the child.
Peters, P.J. Appeal from an order of the Family Court of Saratoga County (Jensen, J.),entered October 20, 2011, which, in a proceeding pursuant to Family Ct Act article 6, grantedrespondent's motion to dismiss the petition.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 2008). Pursuant to a January 2011 order entered upon consent, the partiesagreed to share joint legal and physical custody of the child with a detailed schedule of parentingtime. In May 2011, the mother commenced this proceeding seeking a modification of the priororder of custody. Family Court granted the father's motion to dismiss the petition with prejudice,finding that the mother failed to allege sufficient facts to warrant a hearing. The mother appeals,and we reverse.
Family Court erred in dismissing the mother's modification petition without first conductingan evidentiary hearing. A petition to modify an existing custody arrangement must containfactual allegations of a change in circumstances sufficient to warrant modification in the child'sbest interests (see Matter of Hudson vEck, 70 AD3d 1261, 1262 [2010]; Matter of Bjork v Bjork, 23 AD3d 784, 785 [2005], lvdenied 6 NY3d 707 [2006]). "While not every petition in a Family Ct Act article 6proceeding is automatically entitled to a hearing, [g]enerally an [*2]evidentiary hearing is necessary and should be conducted unless theparty seeking the modification fails to make a sufficient evidentiary showing to warrant a hearingor no hearing is requested and the court has sufficient information to undertake a comprehensiveindependent review of the [child's] best interests" (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internalquotation marks and citations omitted]; accord Matter of Giovanni v Hall, 86 AD3d 676, 677 [2011]; see Matter of Christopher B. v PatriciaB., 75 AD3d 871, 872 [2010]).
Here, the mother's petition alleged, among other things, that the father impeded her access tothe child's daycare providers, used profanity in the child's presence, engaged in a course ofconduct designed to alienate the child from her, and exhibited paranoid, hostile and volatilebehavior. While several of the allegations are similar to those raised in a custody petition thatpredated the January 2011 order, the mother claimed an escalation of those underlying issues andprovided specific allegations that the father had engaged in increasingly aggressive and volatilebehavior and had violated the terms of the prior order. In support of the petition, the motherpresented a letter from the child's pediatrician stating that, due to the father's hostile behaviorduring a recent visit, the practice would no longer provide pediatric care for the child. Liberallyconstruing these allegations (see Matter of Twiss v Brennan, 82 AD3d at 1535), we findthat the mother set forth sufficient facts which, if established at an evidentiary hearing, couldafford a basis for granting the relief sought (see Matter of Giovanni v Hall, 86 AD3d at677; Matter of Twiss v Brennan, 82 AD3d at 1535; Matter of Christopher B. vPatricia B., 75 AD3d at 872-873; Matter of Williams v Mullineaux, 271 AD2d 869,870 [2000]). The fact that the prior order arose out of a stipulation between the parties, and aplenary hearing has yet to be held on the issue of custody, also weighs in favor of a full hearing(see Matter of Giovanni v Hall, 86 AD3d at 677; see generally Matter of Prefario v Gladhill, 90 AD3d 1351, 1352[2011]; Matter of Eunice G. v MichaelG., 85 AD3d 1339, 1340 [2011]).[FN*] Accordingly, we remit the matter to Family Court for a full evidentiary hearing to resolve theissues of change in circumstances and best interests of the child.
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matter remitted to the Family Court of Saratoga County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Although not determinative, thisconclusion is in accord with the position advanced by the attorney for the child both duringarguments on the motion and on this appeal (see Matter of Torkildsen v Torkildsen, 72 AD3d 1405, 1407[2010]; Matter of Diffin v Towne,47 AD3d 988, 992 [2008], lv denied 10 NY3d 710 [2008]).