Figueroa v. Lewis

81 A.D.3d 823, 916 N.Y.S.2d 833

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 2011
• Status: Published

Opinion

In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Dutchess County (Sammarco, J.), dated April 8, 2010, which, without a hearing, dismissed his petition to modify a prior order of visitation.

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

“Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]” (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149 [2010]; see Matter of Mazzola v Lee, 76 AD3d 531 [2010]; Matter of Balgley v Cohen, 73 AD3d 1038 [2010]; Matter of Riedel v Riedel, 61 AD3d 979 [2009]; Matter of Molinari v Tuthill, 59 AD3d 722, 723 [2009]). While “[i]n general, an evidentiary hearing is necessary regarding a modification of visitation” (Matter of Perez v Sepulveda, 51 AD3d 673, 673 [2008]), one who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Reilly v Reilly, 64 AD3d 660 [2009]; Matter of Rodriguez v Hangartner, 59 AD3d 630, 630-631 [2009]; Matter of Walberg v Rudden, 14 AD3d 572 [2005]) and “a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child[ren’s] best interest” (Matter of Hom v Zullo, 6 AD3d 536 [2004]; see Matter of Perez v Sepulveda, 51 AD3d at 673; Matter of Smith v Molody-Smith, 307 AD2d 364 [2003]).

Here, the father failed to allege a sufficient change in circumstances between the time the order of visitation was issued and the filing of his petition which would warrant a hearing on the issue of whether he was entitled to supervised therapeutic visitation. Accordingly, the Family Court properly dismissed the petition (see Matter of Collazo v Collazo, 78 AD3d 1177 [2010]; Matter of Varricchio v Varricchio, 68 AD3d 774, 775 [2009]; Matter of Reilly v Reilly, 64 AD3d 660 [2009]; Matter of Rodriguez v Hangartner, 59 AD3d at 631). Dillon, J.P., Covello, Florio and Hall, JJ., concur.