Matter of Antonio Dwayne G. v. Ericka Monte E.

137 A.D.3d 647, 27 N.Y.S.3d 561

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2016
• Docket: 605
• Status: Published

Opinion

Order, Family Court, New York County (Carol J. Goldstein, Ref.), entered on or about September 9, 2014, which granted, without a hearing, the attorney for the child’s motion to dismiss petitioner father’s petition to modify an order of custody, unanimously affirmed, without costs.

Family Court exercised its discretion in a provident manner in declining to hold a hearing before dismissing the father’s petition to modify the existing custody arrangement. As this Court noted on a prior appeal regarding the denial of a petition by the father to modify the 2004 order of custody, “A court is not required to conduct a hearing whenever a party moves for a change in custody especially where, as here, the claims are speculative and frivolous” (96 AD3d 697, 697 [1st Dept 2012] [internal quotation marks omitted]). Notably, the father even acknowledges that he failed to make the required evidentiary showing to warrant a hearing.

The Referee was not required to meet with the child in camera, and it was proper for the attorney for the child to inform the court of her client’s position (see Matter of Alfredo J.T. v Jodi D., 120 AD3d 1138 [1st Dept 2014]; 22 NYCRR 7.2). Nor has the father demonstrated that he received ineffective assistance of counsel (see Matter of Devonte M.T. [Leroy T.], 79 AD3d 1818 [4th Dept 2010]).

The father’s remaining arguments are not properly before this Court, as they are being raised for the first time on appeal and are based on matters dehors the record.

Concur—Mazzarelli, J.R, Manzanet-Daniels, Kapnick and Webber, JJ.