Kjellgren v. Kjellgren

286 A.D.2d 753, 730 N.Y.S.2d 734, 2001 N.Y. App. Div. LEXIS 8686

Opinion

—In a matrimonial action in which the parties were divorced by judgment entered July 30, 1999, the father appeals from so much of an order of the Supreme Court, Nassau County (Covello, J.), entered May 30, 2000, as denied that branch of his motion which was to change custody of the parties’ children.

Ordered that the order is affirmed insofar as appealed from, with costs.

Contrary to the father’s contention, the Supreme Court properly denied his motion to change custody of the parties’ children without conducting a hearing. A parent who seeks a . change of custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see, DiVittorio v DiVittorio, 283 AD2d 390; Matter of Miller v Lee, 225 AD2d 778). Here, the Supreme Court providently exercised its discretion in finding that the father failed to meet his threshold burden of proffering sufficient evidence to warrant a hearing to determine whether, under the totality of the circumstances, a change of custody would be in the best interests of the children (see, DiVittorio v DiVittorio, supra; Hom v Hom, 270 AD2d 391).

The father’s remaining contention is without merit. Ritter, J. P., S. Miller, Luciano and Crane, JJ., concur.