RICHARD v. REBECCA

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

Matter of RICHARD R.G., Petitioner-Appellant, v. REBECCA H., Respondent-Respondent.

Decided: November 17, 2006

PRESENT:  HURLBUTT, A.P.J., SCUDDER, GORSKI, CENTRA, AND GREEN, JJ. Charles J. Greenberg, Buffalo, for Petitioner-Appellant. Gleichenhaus, Marchese & Falcone, P.C., Buffalo (Charles J. Marchese of Counsel), for Respondent-Respondent.

 Petitioner appeals from an order denying his petition for modification of an order of visitation and again referring the parties to the Catholic Charities Therapeutic Supervised Visitation Program.   Insofar as petitioner sought a hearing on the issue whether visitation should be transferred to the Salvation Army Supervised Visitation Program, Family Court properly denied the petition without a hearing.   It is well settled that “[o]ne who seeks to modify an existing order of visitation is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant it” (Matter of Timson v. Timson, 5 A.D.3d 691, 692, 774 N.Y.S.2d 751).   Here, petitioner “failed to provide any evidence to demonstrate a change of circumstances” that would warrant the nontherapeutic supervised visitation at the Salvation Army sought by him rather than the therapeutic supervised visitation at Catholic Charities deemed appropriate by the court (Matter of Goldberg v. Goldberg, 300 A.D.2d 585, 586, 751 N.Y.S.2d 775).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: