Patricia C. v. Bruce L.

46 A.D.3d 399, 848 N.Y.S.2d 102

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2007
• Status: Published

Opinion

Order, Family Court, New York County (Marva Barnett, Referee), entered on or about May 31, 2007, which denied respondent father’s cross motion to dismiss this proceeding for modification of custody and ordered a hearing on the petition, unanimously reversed, on the law, without costs, the cross motion granted, and the proceeding dismissed. Appeal from order, same court and Referee, entered on or about June 5, 2007, granting petitioner’s motion for forensic evaluations, unanimously dismissed, without costs, as academic in light of the foregoing.

A parent who seeks change of custody must make some evidentiary showing to warrant a hearing; it is not automatically granted (David W. v Julia W., 158 AD2d 1, 6-7 [1990]). In light of petitioner’s failure to demonstrate any changed circumstances since the 2003 order granting custody to the father, or any evidence that he was an unfit parent (see Zima v Aguirre-Cotliar, 21 AD3d 828 [2005]), or, for that matter, any indication that continued custody with him was not in the best interests of the child, the application for modification should have been summarily denied. Concur—Lippman, P.J., Marlow, Williams and Gonzalez, JJ.