Opinion
2002-03392
Submitted June 13, 2003.
July 7, 2003.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Westchester County (Klein, J.), dated March 14, 2002, which, without a hearing, granted the mother's motion to dismiss the petition and awarded the mother counsel fees in the sum of $1,000.
John C. Guttridge, Tarrytown, N.Y., for appellant.
Koob Magoolaghan, New York, N.Y. (Joan Magoolaghan of counsel), for respondent.
William E. Penny, Scarsdale, N.Y., Law Guardian for the children (no brief filed).
Before: FRED T. SANTUCCI, J.P., LEO F. McGINITY, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof awarding the mother counsel fees in the sum of $1,000; as so modified the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for a hearing and a new determination on the issue of an award of counsel fees to the mother.
The Family Court properly dismissed the father's petition without first conducting a hearing. A parent who seeks a change in custody is not automatically entitled to a hearing on the issue of whether a change in custody would be in the child's best interests. Rather, he or she must make some evidentiary showing sufficient to warrant such a hearing ( see Corigliano v. Corigliano, 297 A.D.2d 328; Kjellgren v. Kjellgren, 286 A.D.2d 753; Matter of Johnson v. Semple, 273 A.D.2d 311). Here, the father's allegations in support of his petition were insufficient to require a hearing ( see Itchkow v. Itchkow, 275 A.D.2d 442; Matter of Lowe v. Crawford, 265 A.D.2d 621).
The Family Court was authorized to award the mother counsel fees ( see Family Ct Act § 651[b]; Domestic Relations Law § 237[b]; Matter of O'Neil v. O'Neil, 193 A.D.2d 16). However, the Family Court erred in making such an award without first conducting a hearing to explore the relative financial circumstances of the parties, and to give the father the opportunity to test "the [attorney's] claims relative to time and value" ( Patterson v. Patterson, 302 A.D.2d 507, 508; see Kiprilova v. Kiprilov, 255 A.D.2d 362; Petek v. Petek, 239 A.D.2d 327). Accordingly, the matter is remitted to the Family Court, Westchester County, for a hearing and a new determination on the issue of an award of counsel fees to the mother.
SANTUCCI, J.P., McGINITY, TOWNES and MASTRO, JJ., concur.