Matthew W. v. Sandra W.

291 A.D.2d 693, 737 N.Y.S.2d 439, 2002 N.Y. App. Div. LEXIS 1917

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2002
• Status: Published

Opinion

—Lahtinen, J.

Appeal from an order of the Family Court of Albany County (Duggan, J.), entered July 24, 2000, which dismissed petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for modification of a prior order of custody.

A proceeding under Family Court Act article 10 was commenced against petitioner in 1991 alleging that he sexually abused one of his daughters (born in 1984) and neglected her younger sister (born in 1985). Approximately 15 months later, the proceeding was apparently resolved by an order of disposition and an incorporated order of protection which, inter alia, provided for a one-year order of supervision and prohibited petitioner from any contact with his two daughters until they reached the age of 18 or until the further order of the court.

In May 2000, petitioner filed a petition for modification of an order of custody, under Family Court Act article 6, claiming a change of circumstances and seeking gradually increasing visitation. At the initial appearance, petitioner’s counsel clarified that the order sought to be modified was the 1992 order of protection issued under Family Court Act article 10 prohibiting petitioner from contacting his daughters until they reached the age of 18.

* The matter was then adjourned for six weeks to attempt to have the two daughters and respondent, their mother, meet with a psychologist for an evaluation. No evaluations were performed and, after hearing further argument at the subsequent appearance, Family Court summarily dismissed the petition, finding no significant change in circumstances. Petitioner appeals claiming, inter alia, that Family Court erred by dismissing his petition without an evidentiary hearing after accepting the case and ordering psychological evaluations.

We affirm, albeit on different grounds. Petitioner should have filed a petition pursuant to Family Court Act § 1061 seeking modification of the 1992 order of protection, and petitioner’s procedural error in seeking relief under Family Court Act article 6 provides a proper basis for dismissal (see, Matter of Davies v Davies, 223 AD2d 884, 886).

Mercure, J.P., Crew III, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, without costs.

The limited record before this Court contains only an unsigned order of disposition and an unsigned order of protection which would have expired by their own terms in 1993. However, petitioner makes no argument that the order of protection herein sought to be modified has expired and is no longer in effect (cf., Family Ct Act § 1056 [4]).