Salvatore C. Adamo, New York, NY, for appellant.
Gary E. Eisenberg, New City, NY, for respondent.
Harvey A. Eilbaum, New City, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JOSEPH J. MALTESE, JJ.
Opinion
Appeal from an order of the Family Court, Rockland County (William P. Warren, J.), entered April 21, 2015. The order, without a hearing, granted the father's motion to dismiss the mother's amended petition to modify a prior custody order of that court dated April 1, 2013, awarding sole custody of the parties' two children to the father, so as to award the mother sole custody.
ORDERED that the order entered April 21, 2015, is reversed, on the law, without costs or disbursements, the father's motion to dismiss the mother's amended petition is denied, and the matter is remitted to the Family Court, Rockland County, for a hearing and, thereafter, a new determination on the amended petition.
“A party seeking modification of an existing custody or visitation order must demonstrate that there has been a subsequent change of circumstances such that modification is required to protect the
best interests of the child” (
Matter of
Dunne v. Dunne, 137 A.D.3d 1275, 1276,
28 N.Y.S.3d 707 ;
see Matter of
Gelfarb v. Gelfarb,
133 A.D.3d 598,
18 N.Y.S.3d 548 ). The best interests of the child are determined by a review of the totality of the circumstances (
see
Eschbach v. Eschbach, 56 N.Y.2d 167, 171,
451 N.Y.S.2d 658,
436 N.E.2d 1260 ;
Matter of
Fallarino v. Ayala,
41 A.D.3d 714, 714–715,
838 N.Y.S.2d 176 ).
A parent seeking a change of custody is not automatically entitled to a
hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing (
see Matter of
Hongach v. Hongach, 44 A.D.3d 664,
841 N.Y.S.2d 888 ;
Matter of
Miller v. Lee, 225 A.D.2d 778,
639 N.Y.S.2d 852 ). The mother presented sufficient evidence of a change of circumstances, including the father's alleged interference with her visitation rights, so as to warrant a hearing (
see Matter of
Ruiz v. Sciallo, 127 A.D.3d 1205, 1206,
7 N.Y.S.3d 511 ;
Matter of
Weinberg v. Weinberg, 52 A.D.3d 616,
861 N.Y.S.2d 70 ;
Matter of
Nikolic v. Ingrassia, 47 A.D.3d 819,
850 N.Y.S.2d 539 ;
Matter of
Markey v. Bederian, 274 A.D.2d 816,
710 N.Y.S.2d 482 ;
Matter of
King v. King, 225 A.D.2d 697,
639 N.Y.S.2d 465 ;
Matter of
Sullivan v. Sullivan, 216 A.D.2d 627,
627 N.Y.S.2d 829 ). “ ‘[W]illful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent’ ” (
Matter of
Ruiz v. Sciallo, 127 A.D.3d at 1206,
7 N.Y.S.3d 511, quoting
Matter of
Joosten v. Joosten, 282 A.D.2d 748, 748,
724 N.Y.S.2d 335 ). A hearing is further warranted to ascertain whether the father knowingly left the children alone with the maternal grandfather, or with someone who would leave the children alone with the maternal grandfather, in light of child sexual abuse allegations against the maternal grandfather, as well as a previous warning from the Family Court to avoid leaving the children in the maternal grandfather's sole care. If true, such conduct may evince such poor judgment on the father's part and disregard for the potential danger to the children that it would be highly relevant to the question of custody.
Accordingly, the Family Court erred in granting, without a hearing, the father's motion to dismiss the mother's amended petition to modify the prior custody order dated April 1, 2013.