Opinion
No. CAF 08-01570.
November 13, 2009.
Appeal from an order of the Family Court, Onondaga County (George M. Raus, Jr., Ref.), entered June 13, 2008 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition seeking modification of a custody order.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (MARY P. DAVISON OF COUNSEL), FOR PETITIONER-APPELLANT.
DARLENE O'KANE, LAW GUARDIAN, SYRACUSE, FOR SARA M.B.
Present: Hurlbutt, J.P., Centra, Fahey, Carni and Pine, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for a hearing on the petition.
Memorandum: Petitioner father appeals from an order that summarily dismissed his petition seeking modification of an existing custody order, which was based on a written stipulation between the parties. The petition alleged that modification was warranted because respondent mother had been arrested for "DUI (drugs)" and endangering the welfare of a child. We agree with the father that Family Court erred in dismissing the petition without conducting a hearing, inasmuch as the father "made a sufficient evidentiary showing of a change in circumstances to warrant a hearing" ( Matter of Mayer v Londraville, 26 AD3d 758; cf. Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418).