Opinion
2016–13078 Docket Nos. V–716–11 V–718–11
03-14-2018
In the Matter of LI WONG, appellant, v. FEN LIU, respondent.
Cindy J. Mendelson, Brooklyn, N.Y. (Stuart Diamond of counsel), for appellant. Fersch Petitti, LLC, New York, N.Y. (Meryl A. Hoeft and Patricia Fersch of counsel), for respondent. Karen P. Simmons, Brooklyn, N.Y. (Rachel J. Stanton and Janet Neustaetter of counsel), attorney for the child.
Cindy J. Mendelson, Brooklyn, N.Y. (Stuart Diamond of counsel), for appellant.
Fersch Petitti, LLC, New York, N.Y. (Meryl A. Hoeft and Patricia Fersch of counsel), for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Rachel J. Stanton and Janet Neustaetter of counsel), attorney for the child.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER Appeal from an order of the Supreme Court, Kings County (Esther M. Morgenstern, J.), dated November 14, 2016. The order dismissed, without a hearing, the father's petition to modify the custody and visitation provisions of the parties' judgment of divorce dated June 8, 2014, so as to award him sole legal and physical custody of the parties' child.
ORDERED that the order is affirmed, with costs.
The parties' judgment of divorce, dated June 8, 2014, incorporated the custody and visitation provisions of two orders of the Supreme Court, dated August 6, 2012, and December 14, 2012, respectively, awarding sole legal and physical custody of the parties' child to the mother and liberal parenting time to the father. In May 2016, the father filed a petition to modify the custody and visitation provisions of the judgment of divorce so as to award him sole legal and physical custody of the child. By order dated November 14, 2016, the court dismissed the father's petition without a hearing. The father appeals.
To warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing that there has been a change in circumstances such that the modification is necessary to ensure the continued best interests of the child (see Matter of Zall v. Theiss , 144 A.D.3d 831, 832, 40 N.Y.S.3d 555 ; Matter of Connolly v. Walsh, 126 A.D.3d 691, 693, 5 N.Y.S.3d 241 ; Matter of Graziani C.A. [Lisa A.], 117 A.D.3d 729, 730, 985 N.Y.S.2d 149 ). In determining whether such a change has occurred, the court must consider the totality of the circumstances (see Matter of Zall v. Theiss , 144 A.D.3d at 832, 40 N.Y.S.3d 555; Matter of Connolly v. Walsh, 126 A.D.3d at 693, 5 N.Y.S.3d 241 ). A parent seeking a change of custody is not automatically entitled to a hearing. Rather, a parent must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Ruiz v. Sciallo , 127 A.D.3d 1205, 1206, 7 N.Y.S.3d 511 ; Matter of Klotz v. O'Connor , 124 A.D.3d 662, 663, 1 N.Y.S.3d 352 ; Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141).
Here, the father failed to make an evidentiary showing of a change in circumstances between the issuance of the judgment of divorce and the filing of his petition. Accordingly, the Supreme Court properly dismissed the father's petition without a hearing (see Matter of Castagnini v. Hyman–Hunt , 123 A.D.3d 926, 926, 996 N.Y.S.2d 922 ; Matter of Fasano v. Battista , 68 A.D.3d 863, 864, 890 N.Y.S.2d 618 ; Matter of Riedel v. Riedel, 61 A.D.3d 979, 876 N.Y.S.2d 907 ; Matter of Miller v. Lee, 225 A.D.2d 778, 779, 639 N.Y.S.2d 852).
BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.