IN RE: Nathan GUREWICH (2009)

In a child custody proceeding pursuant to Family Court Act article 6 to modify the custody and visitation provisions of the parties' judgment of divorce, the father appeals from (1) an order of the Family Court, Queens County (McGrady, Ct. Atty. Ref.), dated April 15, 2008, which, without a hearing, granted that branch of the mother's motion which was to dismiss the amended petition, and (2) an order of the same court dated June 16, 2008, which granted that branch of the mother's motion which was for an award of an attorney's fee in the sum of $3,810.

ORDERED that the order dated April 15, 2008, is reversed, on the law, that branch of the mother's motion which was to dismiss the amended petition is denied, and the matter is remitted to the Family Court, Queens County, for a hearing and, thereafter, a new determination on the amended petition;  and it is further,

ORDERED that the order dated June 16, 2008, is reversed, on the facts and in the exercise of discretion, and that branch of the mother's motion which was for an award of an attorney's fee in the sum of $3,810 is denied;  and it is further,

ORDERED that one bill of costs is awarded to the father.

 “In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child” (Matter of Fallarino v. Ayala, 41 A.D.3d 714, 838 N.Y.S.2d 176;  see Matter of Hongach v. Hongach, 44 A.D.3d 664, 841 N.Y.S.2d 888;  Matter of Heuthe v. McLaren, 1 A.D.3d 514, 767 N.Y.S.2d 630).   The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Fallarino v. Ayala, 41 A.D.3d at 714-715, 838 N.Y.S.2d 176).  “Willful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent” (Matter of Joosten v. Joosten, 282 A.D.2d 748, 724 N.Y.S.2d 335;  see Entwistle v. Entwistle, 61 A.D.2d 380, 384-385, 402 N.Y.S.2d 213).

 A parent seeking a change of custody is not automatically entitled to a hearing but must make some evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Hongach v. Hongach, 44 A.D.3d at 664, 841 N.Y.S.2d 888;  Matter of Miller v. Lee, 225 A.D.2d 778, 639 N.Y.S.2d 852).   The Family Court erred in granting, without a hearing, that branch of the mother's motion which was to dismiss the father's amended petition to modify the custody and visitation provisions of the parties' judgment of divorce, as the father presented evidence of a change of circumstances sufficient to warrant a hearing (see Matter of Weinberg v. Weinberg, 52 A.D.3d 616, 861 N.Y.S.2d 70;  Matter of Nikolic v. Ingrassia, 47 A.D.3d 819, 850 N.Y.S.2d 539;  Matter of Markey v. Bederian, 274 A.D.2d 816, 817, 710 N.Y.S.2d 482;  Matter of Sandra C. v. Christian D., 244 A.D.2d 551, 664 N.Y.S.2d 472;  Matter of King v. King, 225 A.D.2d 697, 698, 639 N.Y.S.2d 465;  Matter of Sullivan v. Sullivan, 216 A.D.2d 627, 628, 627 N.Y.S.2d 829;  Frank R. v. Deborah Ann R., 204 A.D.2d 615, 616, 612 N.Y.S.2d 78).

Accordingly, the Family Court improvidently exercised its discretion in granting that branch of the mother's motion which was for an award of an attorney's fee on the basis that the father's amended petition was without merit (see Domestic Relations Law § 237[b];  O'Brien v. O'Brien, 66 N.Y.2d 576, 590, 498 N.Y.S.2d 743, 489 N.E.2d 712).