CORIGLIANO v. CORIGLIANO (2002)

In a matrimonial action in which the parties were divorced by judgment entered July 16, 1998, the plaintiff father appeals from so much of an order of the Supreme Court, Westchester County (Shapiro, J.), entered March 2, 2001, as granted the defendant mother's motion to modify an order of the Family Court, Westchester County (Cooney, J.), entered June 2, 1999, to remove the appointed “case manager,” and denied those branches of his cross motion which were to modify that order by awarding him custody of the parties' eldest child and to appoint a law guardian to represent that child separately from his siblings.

ORDERED that the order is modified by deleting the provisions thereof denying those branches of the cross motion which were to modify the order of the Family Court, Westchester County, entered June 2, 1999, by awarding custody of the parties' eldest child to the plaintiff father and to appoint a law guardian to represent that child separately from his siblings, and substituting therefor provisions (1) directing an evidentiary hearing with respect to that branch of the cross motion which was to modify the prior order of the Family Court, Westchester County, entered June 2, 1999, and (2) appointing a law guardian to represent the eldest child separately from his siblings;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to Supreme Court, Westchester County, for further proceedings consistent herewith.

 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 (see Matter of Coutsoukis v. Samora, 265 A.D.2d 482, 483, 697 N.Y.S.2d 118;  Teuschler v. Teuschler, 242 A.D.2d 289, 290, 660 N.Y.S.2d 744;  Matter of Miller v. Lee, 225 A.D.2d 778, 779, 639 N.Y.S.2d 852).   A change of custody should be made only if the totality of the circumstances warrants a modification (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95-96, 447 N.Y.S.2d 893, 432 N.E.2d 765).

The plaintiff father alleges that the defendant mother now works full-time in Connecticut and attends college three nights a week.   He further alleges that the parties' eldest child lives with his paternal grandparents during the school week and has repeatedly expressed a desire to reside with him.   In view of these allegations, an evidentiary hearing with respect to the branch of the father's cross motion which was, inter alia, to award custody of the subject child to him, is warranted.

 The Supreme Court also erred in denying that branch of the father's cross motion which was to appoint a law guardian to represent the subject child separately from his siblings.   As the law guardian adopted the position that the subject child remain with the mother and his two siblings at the outset of the proceeding, without making an appropriate inquiry, the potential conflict of interest in the law guardian's continued representation of the subject child warrants the appointment of an independent law guardian for the subject child (cf. Matter of Carballeira v. Shumway, 273 A.D.2d 753, 710 N.Y.S.2d 149;  Matter of Rosenberg v. Rosenberg, 261 A.D.2d 623, 624, 690 N.Y.S.2d 693).

The appellant's remaining contention is without merit.