Engeldrum v. Engeldrum

306 A.D.2d 242, 760 N.Y.S.2d 332

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 2003
• Status: Published

Opinion

—In a matrimonial action in which the parties were divorced by judgment entered February 28, 2002, the defendant father appeals from an order of the Supreme Court, Suffolk County (McNulty, J.), dated August 2, 2002, which denied, without a hearing, his motion, inter alia, for a change of custody of the parties’ son from the plaintiff mother to him.

Ordered that the order is affirmed, with costs.

Contrary to the father’s contention, the Supreme Court properly denied his motion for a change of custody of the parties’ son without conducting a hearing. A parent seeking a change of custody is not automatically entitled to a hearing, but must make a sufficient evidentiary showing to warrant a hearing (see Matter of Johnson v Semple, 273 AD2d 311 [2000]; Matter of Ann C. v Debra S., 221 AD2d 338 [1995]). Here, the father failed to make such a showing (see Matter of Johnson v Semple, supra).

Moreover, under the circumstances of this case, it is unnecessary to remit the matter for the appointment of a law guardian (see Matter of Farnham v Farnham, 252 AD2d 675 [1998]; Matter of Newton v Newton, 210 AD2d 337 [1994]). Altman, J.P., Plorio, Adams and Rivera, JJ., concur.