Fasano v. Battista

68 A.D.3d 863, 890 N.Y.2d 618

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2009
• Status: Published

Opinion

Contrary to the mother’s contention, the Family Court properly dismissed, without a hearing, her petition to modify a prior order so as to award her sole custody. Where possible, custody should be established on a long term basis, “at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian” (Obey v Degling, 37 NY2d 768, 770 [1975]; see Matter of Lopez v Infante, 55 AD3d 837 [2008]; DiVittorio v DiVittorio, 36 AD3d 848, 849 [2007]; Jackson v Jackson, 31 AD3d 386 [2006]). A noncustodial parent seeking a change of custody is not entitled to a hearing without making some evidentiary showing sufficient to warrant a hearing (see Matter of Lopez v Infante, 55 AD3d at 838; Matter of Bauman v Abbate, 48 AD3d 679, 680 [2008]; DiVittorio v DiVittorio, 36 AD3d at 849). Here, the mother failed to make such a showing.

We decline the father’s request to impose sanctions against the mother. Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.