Calendar Date: January 20, 2017
M. Colatosti, Albany, for appellant.
R. Corradini, Elmira, for John A. and another, respondents.
Doyle Gee, Big Flats, attorney for the child.
Before: Garry, J.P., Egan Jr., Devine, Clark and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Family Court of Chemung County (Hayden,
J.), entered December 21, 2015, which, in a proceeding
pursuant to Family Ct Act article 6, granted a motion by
respondents John A. and Wanda A. to dismiss the petition.
parties' history is more fully set forth in this
Court's prior decisions involving the subject children
(Matter of William O. v Michele A., 119 A.D.3d 990');">119 A.D.3d 990
; Matter of Jaikob O. [William O.], 88 A.D.3d
1075 ; Matter of William O. v John A., 84
A.D.3d 1447 ). Briefly, petitioner (hereinafter the
father) and respondent Michele A. are the unmarried parents
of three children (born in 2006, 2007 and 2009) - all of whom
are in the care and custody of their maternal grandparents,
respondents John A. and Wanda A. Insofar as is relevant here,
by order dated June 26, 2014, Family Court awarded the father
visitation with the children on alternate weekends. At some
point thereafter, the father commenced a proceeding seeking
to, among other things, modify the visitation provisions of
the June 2014 order. A hearing ensued on the afternoon of
August 5, 2015, during the course of which Family Court
granted a motion to dismiss the father's petition -
citing the father's failure to establish a change in
circumstances since entry of the June 2014 order.
Approximately two hours later, the father commenced the
instant modification proceeding seeking expanded visitation
with his children. Family Court granted the maternal
grandparents' subsequent motion to dismiss, and this
appeal by the father ensued. 
affirm. As the petitioning party, the father bore the initial
burden of demonstrating that a change in circumstances had in
fact occurred since entry of the prior order of
custody/visitation; assuming such a change was established,
the father then was required to show that modification of the
prior order was warranted to serve the children's best
interests (see Matter of Thomas FF. v Jennifer GG.,
143 A.D.3d 1207, 1208 ; Matter of Lynn TT. v Joseph
O., 143 A.D.3d 1089, 1091 ; Matter of Patrick
EE. v Brenda DD., 129 A.D.3d 1235, 1236 , lv
denied 26 N.Y.3d 908');">26 N.Y.3d 908 ). "[N]ot every Family
Ct Act article 6 petition is automatically entitled to an
evidentiary hearing" (Matter of Hayes v Hayes,
128 A.D.3d 1284, 1285 ); rather, a modification
petition "must allege facts which, if established, would
afford a basis for relief and the party seeking such a
modification must make a sufficient evidentiary showing in
order to warrant a hearing" (Matter of Bjork v
Bjork, 23 A.D.3d 784, 785  [internal quotation
marks and citation omitted], lv denied 6 N.Y.3d 707');">6 N.Y.3d 707
; see Matter of Lowe v Bonelli, 129 A.D.3d
1135, 1136-1137 ). This the father failed to do.
record before us reflects that the father filed the instant
modification petition approximately two hours after his prior
modification petition was dismissed due to his failure to
allege a change in circumstances since entry of the June 2014
order. In so doing, the father alleged only that he had
"moved close[r] to [the] children" and had
"exercised consist[e]nt visitation." When Family
Court inquired as to the basis for the asserted change in
circumstances, counsel for the father replied,
"Factually, there's none." Upon further
inquiry, it became apparent that the father commenced this
modification proceeding in an attempt to obtain some sort of
affirmative relief from Family Court without having to await
the resolution of his various appeals. As the father's
conclusory and otherwise unsubstantiated allegations were
insufficient to warrant an evidentiary hearing, Family Court
correctly dismissed the father's petition. Finally, the
father's due process claims are not properly before us as
such claims arise in the context of prior Family Court orders
that, in turn, are the subject of separate appeals.
J.P., Devine, Clark and Aarons, JJ., concur.
that the order is affirmed, without costs.