Opinion
12-07-2016
In the Matter of Elvin PAULINO, appellant, v. Tasha THOMPSON, respondent.
Robert Marinelli, New York, NY, for appellant. Tasha Thompson, Staten Island, NY, respondent pro se. Kenneth M. Tuccillo, Hastings on Hudson, NY, attorney for the children.
Robert Marinelli, New York, NY, for appellant.
Tasha Thompson, Staten Island, NY, respondent pro se.
Kenneth M. Tuccillo, Hastings on Hudson, NY, attorney for the children.
Appeal by the father from an order of the Family Court, Richmond County (Arnold Lim, J.), dated April 21, 2015. The order dismissed, without a hearing, the father's petition to modify a prior so-ordered stipulation of custody and visitation so as to award him physical custody of the subject children.
ORDERED that the order is affirmed, without costs or disbursements.
The parties, who were never married, have two children together. Pursuant to a prior so-ordered stipulation, the parties agreed, inter alia, that the mother would have physical custody of the children and that the father would have visitation. The father appeals from an order which dismissed, without a hearing, his petition to modify the stipulation so as to award him physical custody of the children.
Where parents enter into an agreement concerning custody, it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the children (see Matter of Lazo v. Cherrez, 121 A.D.3d 999, 1000–1001, 995 N.Y.S.2d 141 ; Matter of Cornejo v. Salas, 110 A.D.3d 1068, 1068, 973 N.Y.S.2d 778 ; McNally v. McNally, 28 A.D.3d 526, 527, 816 N.Y.S.2d 98 ). The party seeking such modification is not automatically entitled to a hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Williams v. Norfleet, 140 A.D.3d 1078, 1079, 34 N.Y.S.3d 145 ; Giasemis v. Giasemis, 139 A.D.3d 794, 797, 32 N.Y.S.3d 254 ; Matter of Ali v. Hines, 125 A.D.3d 851, 1 N.Y.S.3d 849 ; Whitehead v. Whitehead, 122 A.D.3d 921, 921, 998 N.Y.S.2d 99 ). Here, the father failed to allege a sufficient change in circumstances between the time of the stipulation and the filing of his petition. Accordingly, the Family Court properly dismissed the father's petition without a hearing (see Matter of Valencia v. Ripley, 128 A.D.3d 711, 712, 9 N.Y.S.3d 112 ; Matter of Castagnini v. Hyman–Hunt, 123 A.D.3d 926, 996 N.Y.S.2d 922 ; Macchio v. Macchio, 120 A.D.3d 560, 990 N.Y.S.2d 641 ).
HALL, J.P., HINDS–RADIX, MALTESE and BARROS, JJ., concur.