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In re Clinton

Supreme Court of New York, Third Department

April 5, 2018

In the Matter of LaKIESAH R. CLINTON, Appellant,
v.
BRIAN N. BACKUS, Respondent.

          Calendar Date: February 20, 2018

          Amanda FiggsGanter, Albany, for appellant.

          Palmer J. Pelella, Owego, for respondent.

          Sharon L. Dyer, Binghamton, attorney for the child.

          Before: Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ.

          MEMORANDUM AND ORDER

          EGAN JR., J.P.

         Appeal from an order of the Family Court of Broome County (Connerton, J.), entered November 28, 2016, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

         Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the unmarried parents of a son (born in 2010). In July 2015, Family Court issued an order, on consent, awarding the parents joint legal custody of the child and the father primary physical custody of the child at his home in the City of Binghamton, Broome County, with the mother having visitation during the child's summer vacations at her home in Georgia. Less than one year later, the mother filed the instant modification petition, seeking to obtain primary physical custody of the child during the school year, with visitation to the father during holidays and summer vacations [1]. In conjunction with her petition, the mother also filed a motion to testify electronically, telephonically or virtually, which motion the father opposed. By order entered November 2016, Family Court sua sponte dismissed the mother's petition without a hearing on the ground that she had failed to allege a change in circumstances since entry of the prior order and denied, as moot, her motion to appear electronically. The mother now appeals.

         We affirm. "A parent seeking to modify an existing custody order must first show that a change in circumstances has occurred since the entry of that order that would then warrant an inquiry into the best interests of the child" (Matter of Damiano v Guzzi, 157 A.D.3d 1013, 1014 [2018]; see Matter of Emmanuel SS. v Thera SS., 152 A.D.3d 900, 901 [2017], lv denied 30 N.Y.3d 905');">30 N.Y.3d 905 [2017]). However, "[a] hearing is not automatically required whenever a parent seeks modification of a custody order" (Matter of Di Fiore v Scott, 2 A.D.3d 1417, 1417 [2003] [internal quotation marks and citations omitted]; see Matter of William O. v John A., 148 A.D.3d 1258, 1259 [2017], lv denied 29 N.Y.3d 908');">29 N.Y.3d 908 [2017]); rather, a petitioner must make a sufficient evidentiary showing demonstrating a real need for change in order to warrant a hearing (see Matter of Lowe v Bonelli, 129 A.D.3d 1135, 1137 [2015]; Matter of Bjork v Bjork, 23 A.D.3d 784, 785 [2005], lv denied 6 N.Y.3d 707');">6 N.Y.3d 707 [2006]; Matter of Chittick v Farver, 279 A.D.2d 673, 675-676 [2001]). The mother failed to make the requisite showing in this case.

         In support of her petition, the mother asserted that the prior custody and visitation order - entered only 10 months prior - did not provide her with enough parenting time and that the child has cried to her on numerous occasions indicating that he wishes to live with her and spend more time with his brother [2]. She also indicated that she is unable to travel long distances due to certain health concerns. At the initial appearance before Family Court, the mother expanded upon her argument in support of modification, alleging that, due to the father's busy work schedule, the child spends a majority of his time with his paternal grandmother and, as a stay-at-home mom, she would be able to spend more time with the child [3]. The mother only made general allegations that she did not have enough parenting time and that the child wanted to spend more time with his brother. Further, there are no allegations in the mother's petition, nor any evidence on the record before us, demonstrating that the father is otherwise "unfit, or perhaps less fit, to continue as the proper custodian" (Matter of Di Fiore v Scott, 2 A.D.3d at 1417 [internal quotation marks and citation omitted]). Accordingly, Family Court's dismissal of the mother's modification petition without a hearing was proper (see Matter of William O. v John A., 148 A.D.3d at 1259-1260; Matter of Hall v Hall, 61 A.D.3d 1284, 1285 [2009]). Lastly, Family Court's dismissal of the mother's petition renders moot the mother's remaining argument with respect to the denial of her motion to testify electronically (see generally Matter of Ashley EE., 84 A.D.3d 1440, 1441 [2011]; Matter of Rebecca KK., 61 A.D.3d 1035, 1037-1038 [2009]).

          Lynch, Mulvey, Aarons and Pritzker, JJ., concur.

         ORDERED that the order is affirmed, without costs.

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