IN RE: JENNIFER R. KNUTH (2010)

MEMORANDUM AND ORDER

FERN S. ADELSTEIN, LAW GUARDIAN, OLEAN, FOR LOGAN W.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Contrary to the contention of petitioner mother, Family Court properly granted respondent father's motion to dismiss the petition seeking to modify a prior custody order without conducting a hearing on the petition.  “A hearing is not automatically required whenever a parent seeks modification of a custody order” (Matter of Wurmlinger v. Freer, 256 A.D.2d 1069;  see David W. v. Julia W., 158 A.D.2d 1, 6-7).   Where, as here, the petitioner fails to demonstrate a sufficient “change in circumstances ․, there is no basis for modification and dismissal of [the] petition is warranted” (Matter of Reese v. Jones, 249 A.D.2d 676, 677;  see Matter of Di Fiore v. Scott, 2 AD3d 1417).

The mother failed to preserve for our review her further contention that the court abused its discretion in dismissing the petition without conducting a Lincoln hearing inasmuch as she failed to request such a hearing (see Matter of Lopez v. Robinson, 25 AD3d 1034, 1037;  Matter of Picot v. Barrett, 8 AD3d 288, 289).   In any event, we reject that contention (see Matter of Charles M.O. v. Heather S.O., 52 AD3d 1279;  Matter of Thompson v. Thompson, 267 A.D.2d 516, 519).

Patricia L. Morgan

Clerk of the Court