Opinion
302 CAF 13-02018
03-27-2015
In the Matter of Joseph Addison GELLING, Sr., Petitioner–Appellant, v. Mary Colleen McNABB, Respondent–Respondent.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Petitioner–Appellant. Kelly M. Corbett, Fayetteville, for Respondent–Respondent. Rosemarie Richards, Attorney for the Child, Gilbertsville.
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of Counsel), for Petitioner–Appellant.
Kelly M. Corbett, Fayetteville, for Respondent–Respondent.
Rosemarie Richards, Attorney for the Child, Gilbertsville.
PRESENT: CENTRA, J.P., PERADOTTO, SCONIERS, AND DEJOSEPH, JJ.
Opinion
MEMORANDUM:Petitioner father appeals from an order granting the motion by the Attorney for the Child to dismiss the father's amended petition seeking to modify an existing custody and visitation order. We agree with the father that Family Court erred in dismissing the amended petition. “To survive a motion to dismiss, a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child” (Matter of Dobrouch v. Reed, 61 A.D.3d 1288, 1289, 879 N.Y.S.2d 220 ; see Matter of Wurmlinger v. Freer, 256 A.D.2d 1069, 1069, 682 N.Y.S.2d 757 ). Here, the amended petition alleged that there had been a change in circumstances inasmuch as the prior order provided that there would be “such and further visitation with the subject child as the parties may mutually agree,” but the respondent mother refused the father all visitation with the child. In our view, the father “ ‘ma[d]e a sufficient evidentiary showing of a change in circumstances to require a hearing’ ” (Matter of Warrior v. Beatman, 70 A.D.3d 1358, 1359, 893 N.Y.S.2d 786, lv. denied 14 N.Y.3d 711, 2010 WL 1854447 ; see also Matter of Telfer v. Pickard, 100 A.D.3d 1050, 1051, 952 N.Y.S.2d 691 ; Matter of Ruple v. Harkenreader, 99 A.D.3d 1085, 1086, 953 N.Y.S.2d 701 ). We therefore reverse the order, reinstate the amended petition, and remit the matter to Family Court for a hearing thereon.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the amended petition is reinstated, and the matter is remitted to Family Court, Onondaga County.