Johnson v. Semple

273 A.D.2d 311, 708 N.Y.S.2d 476, 2000 N.Y. App. Div. LEXIS 6463

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2000
• Status: Published

Opinion

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Greenbaum, J.), dated December 8, 1997, which, without a hearing, denied the petition and dismissed the proceeding on the merits.

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

Contrary to the mother’s contention, the Family Court did not err in dismissing her petition for a change of custody without first conducting a hearing. Where it is 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). A parent seeking a change in custody is not automatically entitled to a hearing; some evidentiary showing must be made (see, Matter of Ann C. v Debra S., 221 AD2d 338; Matter of Lynette L. v Richard K.A., 210 AD2d 1005; Matter of Lenczycki v Alexander, 209 AD2d 480, 481; Matter of Wolfer v Dame, 207 AD2d 898). In the case at bar, the mother failed to make such a showing to warrant a hearing (see, Matter of Wurmlinger v Freer, 256 AD2d 1069; Matter of Miller v Lee, 225 AD2d 778; Matter of Lacarrubba v Lacarrubba, 198 AD2d 354, 355). Joy, J. P., Sullivan, Friedmann and H. Miller, JJ., concur.