Carpenter v. Whitaker

5 A.D.3d 681, 774 N.Y.S.2d 761

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 2004
• Status: Published

Opinion

—In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Amodeo, J.), dated July 29, 2002, which, without a hearing, granted the father’s motion to dismiss the petition for change of residential custody.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the mother’s contention, the Family Court properly dismissed her petition for a change of residential custody without conducting a hearing. A parent seeking a change in custody is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing (see Matter of Madden v Cavanaugh, 307 AD2d 266 [2003]; Matter of Johnson v Semple, 273 AD2d 311 [2000]). Here, the mother failed to make such a showing.

The mother’s remaining contentions are not properly before the Court on this appeal as they involve matters that were not the subject of the order appealed from. Altman, J.P., Smith, H. Miller and Mastro, JJ., concur.