IN RE: Shayne Dion SLADE (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Dutchess County (Denise M. Watson, J.), dated August 5, 2022.  The order, without a hearing, granted the mother's motion to dismiss the father's petition to modify an order of the same court dated January 23, 2020, so as to, inter alia, award him additional parental access with the parties’ children, dismissed that petition, and dismissed the father's separate petitions alleging that the mother violated certain provisions of the order dated January 23, 2020.

ORDERED that the order dated August 5, 2022, is affirmed, without costs or disbursements.

By order dated January 23, 2020 (hereinafter the custody order), the mother was awarded sole legal and physical custody of the parties’ two children and the father was awarded certain parental access.  In September 2021, the father filed a petition to modify the custody order so as to, inter alia, award him additional parental access with the children during the summer.  That same day, the father filed a violation petition, alleging, among other things, that the mother was not allowing communication between the father and the parties’ son and that the mother was no longer bringing the parties’ daughter to therapy.  In July 2022, the father filed a second violation petition with the same allegations.  The mother moved to dismiss the modification petition.  In an order dated August 5, 2022, the Family Court, without a hearing, granted the mother's motion to dismiss the modification petition, dismissed the modification petition, and dismissed the violation petitions.

“ ‘Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child.  The court must consider the totality of the circumstances’ ” (Matter of Tobar v. Velez–Molina, 95 A.D.3d 1224, 1224, 945 N.Y.S.2d 341, quoting Matter of Strand–O'Shea v. O'Shea, 32 A.D.3d 398, 398, 819 N.Y.S.2d 109).  “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” (Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141;  see Matter of Mansilla v. Santiago, 178 A.D.3d 1049, 1050, 112 N.Y.S.3d 598;  Matter of Werner v. Mazzenga, 174 A.D.3d 727, 728–729, 107 N.Y.S.3d 425).

Here, the Family Court providently exercised its discretion in granting, without a hearing, the mother's motion to dismiss the modification petition and dismissing that petition.  The father failed to make the requisite evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Hood v. Rivera, 235 A.D.3d 750, 751, 228 N.Y.S.3d 587).

The Family Court also properly dismissed the violation petitions.  “A hearing is not mandated in every instance where contempt is sought;  it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone” (Jaffe v. Jaffe, 44 A.D.3d 825, 826, 844 N.Y.S.2d 97 [internal quotation marks omitted]).  Here, even assuming that the father adequately alleged a violation of the custody order in the violation petitions, the evidence subsequently submitted by both parties, as well as by the attorneys for the children, provided the court with adequate information to conclude, without a hearing, that the father could not establish a violation (see Matter of Koska v. Koska, 226 A.D.3d 780, 782, 210 N.Y.S.3d 158).

Accordingly, the Family Court properly, without a hearing, granted the mother's motion to dismiss the modification petition, dismissed that petition, and dismissed the violation petitions.

BARROS, J.P., FORD, VENTURA and GOLIA, JJ., concur.