Calendar Date: January 17, 2018
K. Miller, McGraw, for appellant.
Steeves, Kingston, for respondent.
J. Mooney, Ithaca, attorney for the children.
Before: Egan Jr., J.P., Devine, Mulvey, Aarons and Rumsey,
MEMORANDUM AND ORDER
from an order of the Family Court of Cortland County
(Campbell, J.), entered March 23, 2017, which, in a
proceeding pursuant to Family Ct Act article 6, granted
respondent's motion for summary judgment dismissing the
parties' history is more fully set forth in this
Court's prior decisions involving the subject children
(see Matter of Mark WW. v Jennifer B., ___ A.D.3d
___, 2018 NY Slip Op 01229 ; Matter of Jennifer WW.
v Mark WW., 143 A.D.3d 1063, 1063-1064 ). Briefly,
petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of three children
(born in 2008, 2009 and 2010). By order entered October 20,
2016, Family Court resolved the parties' most recent
custody dispute by awarding the father sole custody of the
subject children and providing visitation to the mother on
alternate weekends . Eleven days later, on October 31,
2016, the mother commenced this proceeding in Broome County
seeking to modify that order. The proceeding was transferred
to Cortland County, whereupon the father moved for summary
judgment dismissing the petition. Family Court granted the
father's motion and dismissed the petition, and the
mother now appeals.
affirm. As relevant here, in a proceeding to modify an
existing order of custody, "the controlling
'material fact' is whether or not there [was] a
change in circumstances so as to warrant an inquiry into
whether the best interests of the children would be served by
modifying the existing custody arrangement" (Matter
of Robert OO. v Sherrell PP., 143 A.D.3d 1083, 1084
; see Matter of La Bier v La Bier, 291 A.D.2d
730, 732 , lv dismissed 98 N.Y.2d 671');">98 N.Y.2d 671 ).
Notably, "not every Family Ct Act article 6 petition is
automatically entitled to an evidentiary hearing"
(Matter of William O. v John A., 148 A.D.3d 1258,
1259  [internal quotation marks, brackets and citation
omitted], lv denied 29 N.Y.3d 908');">29 N.Y.3d 908 ). Instead,
"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"
(id. [internal quotation marks and citations
support of his motion, the father submitted the affirmation
of his counsel and appended thereto Family Court's
October 2016 custody order, the mother's modification
petition and the investigation progress notes compiled by a
caseworker for Child Protective Services (hereinafter CPS)
. The mother submitted in opposition
the affirmation of her counsel, who relied upon certain
claimed inconsistent statements that the father made to a CPS
caseworker regarding his alleged marihuana use in an effort
to establish a triable issue of fact. Upon review of these
motion papers, we find that the father satisfied his initial
burden of showing an entitlement to summary judgment, which
the mother failed to rebut.
record reflects that the mother sought to modify the October
2016 order by filing - only 11 days later - the instant
petition in a different county. A review of the petition
reveals that it is based solely on comments regarding the
father that she alleges the children made to her and the
maternal grandmother as the children spent their first
weekend of visitation with the mother. Although out-of-court
statements made by the children would be admissible in a
custody proceeding to the extent that they relate to
allegations of abuse or neglect and are corroborated
(see Family Ct Act § 1046 [a] [vi]; see
Matter of Cobane v Cobane, 57 A.D.3d 1320, 1321 ,
lv denied 12 N.Y.3d 706');">12 N.Y.3d 706 ), the mother failed
in opposing the motion to point to any additional documentary
or testimonial proof in support of these conclusory and
unsubstantiated allegations (cf. Matter of William O. v
John A., 148 A.D.3d at 1259; Matter of Mary GG. v
Alicia GG., 106 A.D.3d 1410, 1412 , lvs
denied 21 N.Y.3d 863');">21 N.Y.3d 863 ). Family Court appropriately
determined that the contents of an unfounded CPS report were
not admissible at trial (see Social Services Law
§ 422  [a]). Accordingly, as the mother failed to
make a facially sufficient evidentiary showing demonstrating
a change in circumstances since entry of the prior custody
and visitation order to warrant an evidentiary hearing
(see Matter of William O. v John A., 148 A.D.3d at
1259-1260; Matter of Lowe v Bonelli, 129 A.D.3d
1135, 1137 ; Matter of Bjork v Bjork, 23
A.D.3d 784, 785 , lv denied 6 N.Y.3d 707');">6 N.Y.3d 707
), under the circumstances, we find that summary
judgment dismissing the petition was appropriately granted
(see generally Matter of Ryan v Nolan, 134 A.D.3d
1259, 1263 ).
Devine, Mulvey, Aarons and Rumsey, JJ., concur.
that the order is ...