Miller v. Lee

225 A.D.2d 778, 639 N.Y.2d 852, 639 N.Y.S.2d 852, 1996 N.Y. App. Div. LEXIS 3145

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 1996
• Status: Published

Opinion

• The Family Court awarded sole custody of the parties’ child to the mother in April 1993, following a full hearing. The father unsuccessfully petitioned for a change of custody in March 1994, and he made the instant application for a change of custody in October 1994. The father’s allegations regarding the mother’s care of the child were referred to the Child Welfare Administration for investigation, and the agency issued a report which concluded that the allegations of neglect were unfounded. Following an in camera interview with the child and consideration of the evidence submitted by the mother in opposition to the application, the court granted her motion to dismiss the application without a hearing.

Where possible, custody of children 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 who seeks a change of custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing (see, David W. v Julia W., 158 AD2d 1). We agree with the Family Court that the father failed to make a sufficient evidentiary showing to warrant a hearing on the application (see, Matter of Ann C. v Debra S., 221 AD2d 338; Matter of Wolfer v Dame, 207 AD2d 898; David W. v Julia W., supra), particularly in view of the court’s familiarity with the history of the case. Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.