Opinion
No. 2022-02671 Docket Nos. V-932-19 V-930-19 V-931-19
08-28-2024
In the Matter of Jeremy Aaron Masiello, appellant, v. Nicole Astol, respondent.
Deana Balahtsis, New York, NY, for appellant. Joan N. G. James, Brooklyn, NY, for respondent. Liberty Aldrich, Brooklyn, NY (Leah Edmunds and Janet Neustaetter of counsel), attorney for the child.
Deana Balahtsis, New York, NY, for appellant.
Joan N. G. James, Brooklyn, NY, for respondent.
Liberty Aldrich, Brooklyn, NY (Leah Edmunds and Janet Neustaetter of counsel), attorney for the child.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, LOURDES M. VENTURA, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated March 28, 2022. The order dismissed, without a hearing, the father's petition to modify an order of the same court dated October 25, 2021, made on consent of the parties, and another order of the same court dated December 9, 2021, so as to award the parties joint legal and physical custody of their child.
ORDERED that the order dated March 28, 2022, is affirmed, without costs or disbursements.
The parties have one child in common, born in February 2014. In an order dated October 25, 2021, entered on consent, the mother was awarded sole legal and physical custody of the child, and the father was awarded parental access every other weekend. In an order dated December 9, 2021, the Supreme Court granted the mother's petition to modify the order dated October 25, 2021, solely to the extent of directing the parties to not contact each other directly by text or email.
In January 2022, the father filed a petition to modify the orders dated October 25, 2021, and December 9, 2021, so as to award the parties joint legal and physical custody of the child. In an order dated March 28, 2022, the Supreme Court dismissed the father's petition, without a hearing. The father appeals.
"In order to modify an existing custody arrangement, there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the child" (Matter of Dubouse v Narita, 214 A.D.3d 798, 799). "'Entitlement to a hearing on a modification petition, however, is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child's best interests'" (Gugel v Gugel, 218 A.D.3d 551, 551, quoting Matter of LaPera v Restivo, 202 A.D.3d 788, 789).
Here, the father failed to make the requisite evidentiary showing of a change in circumstances sufficient to warrant a hearing on his petition to modify the orders dated October 25, 2021, and December 9, 2021. The father's allegations either pertained to conduct that predated those orders or were conclusory and unsubstantiated. Thus, the father failed to make an evidentiary showing of a change in circumstances demonstrating a need to conduct a hearing into whether a modification was required to protect the best interests of the child (see Matter of Wagner v Del Valle, 221 A.D.3d 1017, 1018; Matter of Stones v VanDenberge, 167 A.D.3d 909, 909). Accordingly, the Supreme Court properly dismissed the father's petition without a hearing.
DILLON, J.P., CHAMBERS, WOOTEN and VENTURA, JJ., concur.