IN RE: Kevin J. ROSS (2009)

In related child custody proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Orange County (Kiedaisch, J.), entered April 16, 2009, which, without a hearing, granted the mother's motion to dismiss his petition to modify an order of custody and visitation of the same court dated April 21, 2006, awarding sole legal custody of the parties' children to the mother.

ORDERED that the order entered April 16, 2009, is reversed, on the law, without costs or disbursements, the motion is denied, and the matter remitted to the Family Court, Orange County, for a hearing and a determination on the petition thereafter.

 “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, 714, 838 N.Y.S.2d 176;  see Matter of Strand-O'Shea v. O'Shea, 32 A.D.3d 398, 819 N.Y.S.2d 109;  Scheuering v. Scheuering, 27 A.D.3d 446, 447, 811 N.Y.S.2d 100;  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 (see Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141;  Matter of Joosten v. Joosten, 282 A.D.2d 748, 724 N.Y.S.2d 335;  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 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 the mother's motion to dismiss the father's petition to modify a prior order of custody and visitation awarding her sole legal custody of the parties' children, as the father alleged a change of circumstances sufficient to warrant a hearing (see Matter of Gurewich v. Gurewich, 58 A.D.3d at 629, 872 N.Y.S.2d 141;  Matter of Darla N. v. Christine N., 289 A.D.2d 1012, 734 N.Y.S.2d 783;  cf. Matter of Davies v. Davies, 223 A.D.2d 884, 885-887, 636 N.Y.S.2d 232).