IN RE: a Proceeding Under Article 6 of the Family Court Act

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Family Court, Nassau County, New York.

IN RE: a Proceeding Under Article 6 of the Family Court Act, J.A.S., Petitioner, v. G.P.S., Respondent.

Decided: October 10, 2008

Luise M. Klein, Esq., for Petitioner-mother. Adrienne Flipse Hausch, Esq., of Carway and Flipse, for Respondent-father. Janis A. Parazzelli, Esq. was appointed attorney for the children, but did not submit papers either in support or against the requested relief in the motion.

The matter before the Court is respondent's motion to dismiss the petition filed by petitioner seeking to modify the Final Order of Custody and Visitation of this Court of November, 2006.

By Judgment of Divorce issued by Nassau County Supreme Court, dated August 31, 2001, the parties were divorced and were granted joint legal custody of the two children of the marriage, to wit:  J., born March 14, 1995 and K., born September 5, 1996.   Petitioner-mother was granted physical custody.   Visitation (parenting time) was to occur as per the terms of the parties' divorce stipulation which was incorporated by reference into, but did not merge with the Judgment of Divorce.

These terms were subsequently modified, on consent, when the parties entered into a Final Order of Custody and Visitation before the Hon. Claire I. Weinberg, J.H.O. of this Court, in November, 2006. According to the terms of the modified Order, respondent-father was granted physical custody of the subject children and new visitation (parenting) terms were created for the petitioner-mother.   By petition dated July 13, 2008, petitioner seeks to modify the November 2006 Order to have physical custody of the children transferred back to her.

Respondent asserts the petition fails to allege the requisite change of circumstances and seeks to have the petition dismissed without need for an evidentiary hearing.   In opposition to these claims, petitioner's counsel submitted an affirmation and proof that petitioner completed a chemical dependency out-patient program.   Petitioner further argues the change of physical custody in November 2006 was a temporary measure.   In fact, petitioner's counsel states in the third paragraph of her affirmation “Residential custody was changed TEMPORARILY in August 2006 so that Mrs. S. could have the opportunity to resolve her issues and see that her life is on a positive track.” (emphasis supplied).   Despite these protestations, there is nothing to indicate that the November 2006 Order was temporary in nature.   Nowhere in that document is the word “temporary” found.   The document is actually titled “Final Order of Custody and Visitation.”   The Court is surprised at counsel's assertion that this was a temporary measure with absolutely no documentation or transcripts to support it, and all evidence pointing toward the contrary.

 A modification of an order of custody requires the requisite change in circumstances.  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765.   A modification should be granted where “․ the totality of the circumstances warrants a modification in the best interests of the child.”  Ganzenmuller v. Rivera, 40 A.D.3d 756, 757, 835 N.Y.S.2d 673 (2d Dept.2007), citing Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765;  Matter of Brian S. v. Stephanie P., 34 A.D.3d 685, 825 N.Y.S.2d 232 (2d Dept. 2006).   A party seeking a change in custody is not automatically entitled to a hearing on that issue, but must present an evidentiary showing which would indicate a hearing was warranted.  DiVittorio v. DiVittorio, 283 A.D.2d 390, 723 N.Y.S.2d 863 (2d Dept.2001), Miller v. Lee, 225 A.D.2d 778, 639 N.Y.S.2d 852 (2d Dept.1996).

 Herein, the petitioner fails to allege the requisite change in circumstances.   Her petition and supporting affidavit state that after an “unfortunate judgment call” she agreed to give respondent temporary custody of the children.   It further states she has since put her life back together and believes the children will be better off with her.   It further states she does not know how the children are doing since the father does not share any information with her.

As has already been addressed, the argument that the November 2006 Order was temporary in nature is unsubstantiated at best.   That she may have put her life “back together” does not rise to a change in circumstances.   To be sure, language to this effect could have been inserted into the November 2006 Order indicating petitioner would regain physical custody if she reached certain benchmarks.   No such language exists.   Instead, that Order spells out physical custody as well as a new visitation (parenting) schedule including the alternating of holidays.   To this Court, the intent of that Order was to be a long-term solution, not a temporary fix.

Petitioner does assert that the father is not providing her with information regarding the children's educational and social progress. However, respondent easily refutes this allegation by annexing a sampling of emails between petitioner and respondent where respondent is at least making the attempt to communicate with petitioner, an attempt petitioner does not seem to want to make go easy.   If it is true the respondent is denying her information, then the proper course may be a violation petition.   Alone, with absolutely nothing to support the allegation, it is not enough to sustain the modification petition against the Motion to Dismiss.

The Court finds the petitioner has failed to make enough of an evidentiary showing to sustain the petition and warrant a hearing.   It is therefore

ORDERED that the father's Motion to Dismiss the modification petition is granted in its entirety.

This constitutes the Decision and Order of the Court.