Jackson v. Jackson

31 A.D.3d 386, 817 N.Y.S.2d 501

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 2006
• Status: Published

Opinion

In an action for a divorce and ancillary relief, the defendant appeals from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated June 20, 2005, as denied, without a hearing, her motion for a change of custody of the parties’ children, for the appointment of a Law Guardian, and for a hearing to determine the merits of the motion.

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

Contrary to the mother’s contention, the Supreme Court properly denied her motion, inter alia, for a change of custody of the parties’ children without conducting a hearing. 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]). A parent seeking a change in custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Engeldrum v Engeldrum, 306 AD2d 242, 242 [2003]; Kjellgren v Kjellgren, 286 AD2d 753 [2001]; Matter of Johnson v Semple, 273 AD2d 311, 311 [2000]). Here, the mother failed to make such a showing.

Under the circumstances of this case, it is unnecessary to remit the matter for the appointment of a Law Guardian (see Richard D. v Wendy P., 47 NY2d 943, 944-945 [1979]; Matter of Weis v Rivera, 29 AD3d 812 [2006]). Crane, J.P., Ritter, Krausman and Skelos, JJ., concur.