Opinion
808 CAF 19-00187
10-02-2020
In the Matter of Debra M. WILLIAMS, Petitioner-Appellant, v. Darlene I. REID and Jennifer L. Johnson, Respondents-Respondents.
TYSON BLUE, MACEDON, FOR PETITIONER-APPELLANT. CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILDREN.
TYSON BLUE, MACEDON, FOR PETITIONER-APPELLANT.
CHRISTINE F. REDFIELD, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner mother commenced this proceeding pursuant to Family Court Act article 6 seeking, inter alia, to modify prior custody orders by granting her sole legal and residential custody of her daughter and son. Contrary to the mother's contention, Family Court properly granted without a hearing the motion of respondent Jennifer L. Johnson, the children's aunt (aunt), seeking to dismiss the petition. A hearing is not automatically required whenever a parent seeks modification of a custody order and, here, the mother failed to make a sufficient evidentiary showing of a change in circumstances to require a hearing (see Matter of Chase v. Chase , 181 A.D.3d 1323, 1324, 120 N.Y.S.3d 680 [4th Dept. 2020], lv dismissed in part and denied in part 35 N.Y.3d 996, 125 N.Y.S.3d 672, 149 N.E.3d 433 [2020] ; Matter of Gworek v. Gworek [Appeal No. 1], 158 A.D.3d 1304, 1304, 68 N.Y.S.3d 365 [4th Dept. 2018] ). Contrary to the mother's contention, the allegations in the petition regarding her employment and residence did not demonstrate a change in circumstances inasmuch as the mother held the same job and lived in the same residence at the time she filed her petition as she did at the time of the custody trial in 2017. The mother also alleged as a change in circumstances that the aunt had started the son on medication without seeking the court's permission. The mother, however, has not included in the record the court's prior custody orders or evidence of some other directive of the court concerning medication. The record is therefore not adequate to permit review of the mother's allegation (see Matter of Unczur v. Welch , 159 A.D.3d 1405, 1405, 72 N.Y.S.3d 680 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924938 [2018] ; Matter of Christopher D.S. [Richard E.S.] , 136 A.D.3d 1285, 1286-1287, 25 N.Y.S.3d 455 [4th Dept. 2016] ). The mother further alleged as a change in circumstances that her children expressed a preference for living with her. "[A]lthough not dispositive, the express wishes of older and more mature children can support the finding of a change in circumstances" ( Matter of Rohr v. Young , 148 A.D.3d 1681, 1681, 50 N.Y.S.3d 653 [4th Dept. 2017] [internal quotation marks omitted]; see Matter of Cole v. Nofri , 107 A.D.3d 1510, 1511, 967 N.Y.S.2d 552 [4th Dept. 2013], lv denied 22 N.Y.3d 1083, 981 N.Y.S.2d 666, 4 N.E.3d 967 [2014] ). Here, however, the children were 7 years old and 5 years old, and we consider them too young and not of sufficient maturity for their alleged desires to reside with the mother to demonstrate a change in circumstances (see generally Fox v. Fox , 177 A.D.2d 209, 211, 582 N.Y.S.2d 863 [4th Dept. 1992] ). We have examined the mother's remaining allegations of purported changes in circumstances, and we agree with the court that none of them warranted a hearing or precluded the grant of the aunt's motion.