WURMLINGER v. FREER

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Patricia WURMLINGER, Appellant, v. Dale FREER, Respondent.

Decided: December 31, 1998

Present:  PINE, J.P., HAYES, CALLAHAN, BALIO and BOEHM, JJ. Lisa Sadinsky, Rochester, for petitioner-appellant. Dale Freer, pro se. Murphy & Murphy by Joseph Murphy, Olean, for Law Guardian.

 Family Court did not err in dismissing the petition seeking modification of a prior custody order without conducting a hearing.   The child, born March 13, 1989, lived with both petitioner and respondent, his parents, until he was three.   In 1993 Family Court awarded the parties joint custody with primary physical residence with respondent father.   The order was modified in 1996 to provide for supervision of petitioner mother's visitation.   On March 19, 1997, upon consent of the parties, joint custody with primary physical residence with respondent was continued and supervision of petitioner's visitation was eliminated.   Petitioner filed the instant petition a few months later, on August 13, 1997, seeking primary physical custody of the child.   The changed circumstances alleged by petitioner, even if established, are insufficient to show that a change in the child's primary residence would be in the child's best interests.   A hearing is not automatically required whenever a parent seeks modification of a custody order (see, David W. v. Julia W., 158 A.D.2d 1, 6-7, 557 N.Y.S.2d 314).

Order unanimously affirmed without costs.

MEMORANDUM: