PETKOVSEK v. SNYDER (1998)

 Petitioner's contention that Supreme Court erred in vacating a temporary custody order of Family Court without notice and a hearing is moot (see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876).   Supreme Court's order was stayed and a hearing was held on petitioner's request for modification of custody.   Therefore, no controversy remains concerning whether one court may vacate the order of another court (see, Matter of General Bldg. Contrs. of N.Y. State v. Egan, 106 A.D.2d 688, 690, 483 N.Y.S.2d 746, lv. denied 65 N.Y.2d 601, 491 N.Y.S.2d 1026, 481 N.E.2d 258).

 Supreme Court did not abuse its discretion in denying petitioner's motion for recusal (see, People v. Moreno, 70 N.Y.2d 403, 405-406, 521 N.Y.S.2d 663, 516 N.E.2d 200).   The record does not disclose any evidence of bias or prejudice on the part of the court.   Further, “[w]here, as here, there is no allegation that recusal is statutorily required (see, Judiciary Law § 14), the matter of recusal is addressed to the discretion and personal conscience of the Justice whose recusal is sought” (Matter of Card v. Siragusa, 214 A.D.2d 1022, 1023, 626 N.Y.S.2d 336).

 We reject the contention of petitioner that the court erred by denying her request that the court interview the parties' child in camera.   Although the court agreed to interview the child, petitioner refused to produce the child unless the interview was conducted in the presence of a third person chosen by petitioner.   The court properly refused to conduct the interview on terms dictated by petitioner.   We further note that the court interviewed the child as part of the original custody determination in January 1997.

 The court did not improvidently exercise its discretion in denying petitioner's request to appoint a new Law Guardian.   The record does not support petitioner's allegations that the Law Guardian failed to diligently represent the best interests of the child or that he engaged in intentional misconduct (see, Matter of Maurer v. Maurer, 243 A.D.2d 989, 663 N.Y.S.2d 421;  Matter of Zirkind v. Zirkind, 218 A.D.2d 745, 746, 630 N.Y.S.2d 570;   Matter of Paul C. v. Tracy C., 209 A.D.2d 955, 622 N.Y.S.2d 159).

 We further reject the contention of petitioner that the court improperly dismissed her petitions seeking a change in custody without conducting fact-finding hearings.  “A parent who seeks a change of custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing” (Matter of Miller v. Lee, 225 A.D.2d 778, 779, 639 N.Y.S.2d 852;  see, David W. v. Julia W., 158 A.D.2d 1, 6-7, 557 N.Y.S.2d 314).   Petitioner failed to make that showing (see, Matter of Miller v. Lee, supra, at 779, 639 N.Y.S.2d 852;  Matter of Ann C. v. Debra S., 221 A.D.2d 338, 633 N.Y.S.2d 363;  Matter of Wolfer v. Dame, 207 A.D.2d 898, 899, 616 N.Y.S.2d 996).

Order unanimously affirmed without costs.

MEMORANDUM: