IN RE: Joseph E. BERG (2020)

MEMORANDUM AND ORDER

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

Memorandum:  Petitioner father commenced this proceeding pursuant to Family Court Act article 6 seeking to modify a prior custody and visitation order entered on stipulation.  The father appeals from an order that granted respondent mother's motion to dismiss the petition, which was made during a hearing on the petition following the close of the father's proof.

It is well established that “[w]here an order of custody and visitation is entered on stipulation, a court cannot modify that order unless a sufficient change in circumstances—since the time of the stipulation—has been established, and then only where a modification would be in the best interests of the child[ren]” (Matter of McKenzie v. Polk, 166 A.D.3d 1529, 1529, 85 N.Y.S.3d 810 [4th Dept. 2018] [internal quotation marks omitted];  see Matter of Hight v. Hight, 19 A.D.3d 1159, 1160, 796 N.Y.S.2d 494 [4th Dept. 2005];  see also Matter of McCarthy v. Kriegar, 162 A.D.3d 1563, 1564, 78 N.Y.S.3d 571 [4th Dept. 2018]).  “[O]ne who seeks to modify an existing order of [custody and] visitation is not automatically entitled to a hearing[ and] must make some evidentiary showing sufficient to warrant it” (Matter of Moreno v. Elliott, 170 A.D.3d 1610, 1612, 94 N.Y.S.3d 500 [4th Dept. 2019] [internal quotation marks omitted];  see Matter of Chichra v. Chichra, 148 A.D.3d 883, 884, 49 N.Y.S.3d 513 [2d Dept. 2017]).

Here, we conclude that Family Court erred in interpreting the existing order and underlying stipulation to permit the father to seek modification of the visitation arrangement without first satisfying the threshold burden of establishing a change in circumstances (cf. Matter of Rosenkrans v. Rosenkrans, 154 A.D.3d 1123, 1124, 62 N.Y.S.3d 216 [3d Dept. 2017];  Matter of Mayo v. Mayo, 63 A.D.3d 1207, 1208, 880 N.Y.S.2d 380 [3d Dept. 2009];  Matter of Studenroth v. Phillips, 230 A.D.2d 247, 249–250, 657 N.Y.S.2d 257 [3d Dept. 1997]).  Nevertheless, upon our independent review of the record (see Matter of Curry v. Reese, 145 A.D.3d 1475, 1475, 44 N.Y.S.3d 279 [4th Dept. 2016]), we further conclude that the father failed to establish the requisite change in circumstances, and the court therefore did not err in dismissing the petition.