Warrior v. Beatman

70 A.D.3d 1358, 893 N.Y.S.2d 786

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2010
• Status: Published

Opinion

—Appeal from an order of the Family Court, Cattaraugus County (Paul B. Kelly, J.H.O.), entered November 19, 2008 in a proceeding pursuant to Family Court Act article 6. The order granted the motion of the Law Guardian and dismissed the petition.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We reject the contention of petitioner mother that Family Court erred in granting the Law Guardian’s motion to dismiss the petition seeking modification of an existing custody order without conducting a hearing. “A hearing is not automatically required whenever a parent seeks modification of a custody order” (Matter of Wurmlinger v Freer, 256 AD2d 1069 [1998]) and, here, the mother failed to “make a sufficient evidentiary showing of a change in circumstances to require a hearing” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003] [internal quotation marks omitted]; see Matter of Krest v Kawczynski, 9 AD3d 907 [2004]). Present—Centra, J.P., Peradotto, Lindley, Pine and Gorski, JJ.