Madden v. Cavanaugh

Appellate Division of the Supreme Court of New York

Madden v. Cavanaugh

307 A.D.2d 266, 761 N.Y.S.2d 874

Appellate Division of the Supreme Court of the State of New York·Decided July 7, 2003·Published·Cited by 7 cases

Opinion

—In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Westchester County (Klein, J.), dated March 14, 2002, which, without a hearing, granted the mother’s motion to dismiss the petition and awarded the mother counsel fees in the sum of $1,000.

Ordered that the order is modified, on the law, by deleting the provision thereof awarding the mother counsel fees in the sum of $1,000; as so modified the order is affirmed, without costs or disbursements, and the matter is remitted to the Fam[267] ily Court, Westchester County, for a hearing and a new determination on the issue of an award of counsel fees to the mother.

The Family Court properly dismissed the father’s petition without first conducting a hearing. A parent who seeks a change in custody is not automatically entitled to a hearing on the issue of whether a change in custody would be in the child’s best interests. Rather, he or she must make some evidentiary showing sufficient to warrant such a hearing (see Corigliano v Corigliano, 297 AD2d 328 [2002]; Kjellgren v Kjellgren, 286 AD2d 753 [2001]; Matter of Johnson v Semple, 273 AD2d 311 [2000]). Here, the father’s allegations in support of his petition were insufficient to require a hearing (see Itchkow v Itchkow, 275 AD2d 442 [2000]; Matter of Lowe v Crawford, 265 AD2d 621 [1999]).

The Family Court was authorized to award the mother counsel fees (see Family Ct Act § 651 [b]; Domestic Relations Law § 237 [b]; Matter of O’Neil v O’Neil, 193 AD2d 16 [1993]). However, the Family Court erred in making such an award without first conducting a hearing to explore the relative financial circumstances of the parties, and to give the father the opportunity to test “the [attorney’s] claims relative to time and value” (Patterson v Patterson, 302 AD2d 507, 508 [2003] [internal quotation marks omitted]; see Kiprilova v Kiprilov, 255 AD2d 362 [1998]; Petek v Petek, 239 AD2d 327 [1997]). Accordingly, the matter is remitted to the Family Court, Westchester County, for a hearing and a new determination on the issue of an award of counsel fees to the mother. Santucci, J.P., McGinity, Townes and Mastro, JJ., concur.

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—In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Westchester County (Klein, J.), dated March 14, 2002, which, without a hearing, granted the mother’s motion to dismiss the petition and awarded the mother counsel fees in the sum of $1,000.

Ordered that the order is modified, on the law, by deleting the provision thereof awarding the mother counsel fees in the sum of $1,000; as so modified the order is affirmed, without costs or disbursements, and the matter is remitted to the Fam[267] ily Court, Westchester County, for a hearing and a new determination on the issue of an award of counsel fees to the mother.

The Family Court properly dismissed the father’s petition without first conducting a hearing. A parent who seeks a change in custody is not automatically entitled to a hearing on the issue of whether a change in custody would be in the child’s best interests. Rather, he or she must make some evidentiary showing sufficient to warrant such a hearing (see Corigliano v Corigliano, 297 AD2d 328 [2002]; Kjellgren v Kjellgren, 286 AD2d 753 [2001]; Matter of Johnson v Semple, 273 AD2d 311 [2000]). Here, the father’s allegations in support of his petition were insufficient to require a hearing (see Itchkow v Itchkow, 275 AD2d 442 [2000]; Matter of Lowe v Crawford, 265 AD2d 621 [1999]).

The Family Court was authorized to award the mother counsel fees (see Family Ct Act § 651 [b]; Domestic Relations Law § 237 [b]; Matter of O’Neil v O’Neil, 193 AD2d 16 [1993]). However, the Family Court erred in making such an award without first conducting a hearing to explore the relative financial circumstances of the parties, and to give the father the opportunity to test “the [attorney’s] claims relative to time and value” (Patterson v Patterson, 302 AD2d 507, 508 [2003] [internal quotation marks omitted]; see Kiprilova v Kiprilov, 255 AD2d 362 [1998]; Petek v Petek, 239 AD2d 327 [1997]). Accordingly, the matter is remitted to the Family Court, Westchester County, for a hearing and a new determination on the issue of an award of counsel fees to the mother. Santucci, J.P., McGinity, Townes and Mastro, JJ., concur.

Madden v. Cavanaugh, 307 A.D.2d 266, 761 N.Y.S.2d 874 (N.Y. Ct. App. 2003).

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