Penichet Firm, P.C., White Plains, NY (Jeanna M. Alberga of
counsel), for appellant.
& Rosoff, P.C. (Annette G. Hasapidis, South Salem, NY, of
counsel), for respondent.
Richard J. Strassfield, White Plains, NY, attorney for the
children Ruby L., Eliza L., and Phoebe L.
Jennifer M. Jackman, White Plains, NY, attorney for the child
Claire L. (no brief filed).
WILLIAM F. MASTRO, J.P., MARK C. DILLON, RUTH C. BALKIN,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
by the mother from an order of the Family Court, Westchester
County (Nilda Morales Horowitz, J.), dated October 16, 2015.
The order, insofar as appealed from, without a hearing,
granted the father's motion to dismiss the mother's
petition to modify the custody provisions of stipulations of
settlement, which were incorporated but not merged, into the
parties' judgment of divorce, so as to award her sole
custody of the parties' children.
that the order is reversed insofar as appealed from, on the
law, without costs or disbursements, the father's motion
to dismiss the mother's petition is denied, and the
matter is remitted to the Family Court, Westchester County,
for further proceedings on the petition consistent herewith,
before a different Judge.
mother and the father were married and are the parents of
four children, the oldest of whom is 16 years old and the
youngest of whom is 10 years old. In March 2012, the parties
entered into stipulations of settlement, which were
incorporated but not merged, into a judgment of divorce. The
stipulations provided that the mother would have physical
custody of the parties' children, and that the parties
would have joint legal custody. The mother was granted final
decision-making authority, on the condition that she first
consult with the father. The father's visitation included
alternating weekend overnight visits.
September 2013, upon the mother's motion, the Family
Court suspended the father's visitation with the
children, pending investigation of allegations that he had
sexually abused the oldest child, who was then 13 years old.
In January 2014, the Westchester Department of Social
Services (hereinafter DSS) commenced a child protective
proceeding pursuant to Family Court Act article 10, alleging
that the father sexually abused the oldest child and
derivatively abused and neglected the three younger children.
The following month, the mother filed a petition to modify
the custody provisions of the parties' stipulations of
settlement, seeking sole custody of the children. Her
petition alleged, as a change of circumstances, the pending
proceeding based on allegations of sexual abuse, and that DSS
had found the report of sexual abuse to be
"indicated." The court held the mother's
custody petition in abeyance pending the outcome of the
article 10 proceeding.
September 2014, over the objection of the attorney for the
oldest child, the article 10 proceeding was resolved with an
order adjourning the matter in contemplation of dismissal,
under which the father was not required to admit to any
wrongdoing and the Family Court made no findings of fact. The
mother had not been permitted to participate in the article
10 proceeding, and the court did not allow the oldest child
to provide in camera testimony in that proceeding. In March
2015, pursuant to the terms of the adjournment in
contemplation of dismissal, the article 10 proceeding was
"dismissed, with prejudice, in furtherance of
justice." During the pendency of the article 10
proceeding, the court had gradually reinstated the
father's visitation with the younger children, while
visitation with the oldest child remained suspended. By April
2015, over the mother's objection and request for a full
hearing, the court permitted the father to have unsupervised
weekend visitation with the three younger children.
2015, the father moved to dismiss the mother's
modification petition. In the order appealed from, the Family
Court granted the motion without holding a hearing on the
petition. The mother appeals, and we reverse.
provisions of a stipulation of settlement may be modified
when a change in circumstances has made modification
necessary to ensure that the provisions serve the best
interests of the child (see Family Ct Act §
652[a]; Matter of Pena v Lopez, 140 A.D.3d 967, 968;
Matter of Gelfarb v Gelfarb, 133 A.D.3d 598, 599).
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; Matter of Blackman v
Barge, ___ A.D.3d ___, 2016 NY Slip Op 08357 [2d Dept
2016]). A parent who seeks a modification is not
automatically entitled to a hearing, but must make some
evidentiary showing sufficient to warrant a hearing (see
Macchio v Macchio, 120 A.D.3d 560, 560; Connor v
Connor, 104 A.D.3d 638, 639).
the mother established her entitlement to a hearing on the
basis of changed circumstances. Specifically, the mother made
a sufficient evidentiary showing in support of her
allegations that the father sexually abused the oldest child
and that, as a result of the ensuing litigation, the
mother's relationship with the father had deteriorated to
the point that they could no longer communicate, and the
oldest child was no longer visiting with the father (see
Matter of Fargasch v Alves, 116 A.D.3d 774, 775;
Anonymous 2011-1 v Anonymous 2011-2, 102 A.D.3d 640,
641-642). Moreover, the "narrow exception" to the
general requirement that a hearing be held is inapplicable in
this case (S.L. v J.R., 27 N.Y.3d 558, 564). The
dismissal of the article 10 proceeding pursuant to an
adjournment in contemplation of dismissal was not a dismissal
on the merits and it did not resolve the allegations of
sexual abuse (see Family Ct Act § 1039[f];
Matter of Selliah v Penamente, 107 A.D.3d 1004,
1005). Indeed, no evidentiary hearing was held in the article
10 proceeding, and the Family Court never made any findings
of fact in that proceeding regarding the allegations of
sexual abuse. In sum, the court should not have dismissed the
mother's modification petition without a hearing (see
S.L. v J.R., 27 N.Y.3d at 564).
we remit the matter to the Family Court, Westchester County,
for a hearing on the mother's modification petition. In
light of certain statements made by the court regarding the
mother and the oldest child, we ...