In re Sergei P. v. Sofia M.

44 A.D.3d 490, 843 N.Y.S.2d 603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2007
• Status: Published

Opinion

Order, Family Court, New York County (Karen I. Lupuloff, J.), entered on or about October 24, 2006, which, without a hearing, dismissed the petition for change of custody, unanimously affirmed, without costs.

A parent seeking a change of custody is not automatically entitled to a hearing (Matter of Coutsoukis v Samora, 265 AD2d 482 [1999]). Where parents enter into a formal custody agreement, it will not be set aside without a showing of a sufficient change in circumstances since the time of the stipulation, and unless the proposed modification is shown to be in the best interests of the child (Smoczkiewicz v Smoczkiewicz, 2 AD3d 705 [2003]). Furthermore, no court will modify such an order of custody granted on stipulation, absent such showings (see Matter of Watts v Watts, 290 AD2d 822, 823-824 [2002], lv denied 97 NY2d 614 [2002]; Family Ct Act § 467 [b]). Here, in settlement of a prior enforcement proceeding, the parties entered into a stipulation on May 16, 2005, reinstated on May 16, 2006, in which petitioner agreed that custody would remain with respondent. Petitioner has not alleged a sufficient change of circumstances since that time to warrant a hearing on a change of custody. The court correctly stated that it would consider future applications for a change of custody if the alleged conduct by respondent was found to continue. Concur—Nardelli, J.P., Gonzalez, Sweeny, McGuire and Kavanagh, JJ.