Edem v. Wondemagegehu

199 A.D.3d 795

158 N.Y.S.3d 140

In the Matter of Orok EDEM, appellant,

v.Kidist WONDEMAGEGEHU, respondent.

2020–06804

Docket Nos. V–1700–19, V–1701–19

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

Submitted—September 23, 2021

November 10, 2021

Amy J. Barrett, New York, NY, for appellant.

Janet E. Sabel, Brooklyn, NY (Jean Callahan and Oren J. Haymovits of counsel), for respondent.

Law and Mediation Office of Helene Bernstein, PLLC, Brooklyn, NY, attorney for the children.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, FRANCESCA E. CONNOLLY, WILLIAM G. FORD, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of dismissal of the Family Court, Richmond County (Alexandra Byun, Ct. Atty. Ref.), dated August 26, 2020. The order of dismissal, without a hearing, dismissed the father's petition to modify the custody provisions of the parties’ judgment of divorce.

ORDERED that the order of dismissal is affirmed, without costs or disbursements.

The parties are the divorced parents of two children. A judgment of divorce dated December 17, 2018, was entered, upon, inter alia, an order of the Supreme Court dated August 22, 2017, awarding the mother sole legal and residential custody of the children, with parental access to the father. The father appealed from stated portions of the judgment of divorce in a related appeal ( Wondemagegehu v. Edem, 199 A.D.3d 871, 154 N.Y.S.3d 276 [decided herewith]).

In April 2019, the father commenced a proceeding in the Family Court, Richmond County, to modify the custody provisions of the parties’ judgment of divorce, alleging that a change in circumstances warranted awarding the parties joint legal and residential custody of the children. In an order dated December 17, 2019, the Family Court granted the mother's motion to dismiss the petition. In an order of dismissal, also dated December 17, 2019, the court, without a hearing, dismissed the petition.

On or about February 11, 2020, the father commenced the instant proceeding for the same relief, alleging a change in circumstances in that the mother was not adequately supervising the children and the older child had been recently suspended from school for allegedly bringing a metal nail file to school. In an order dated August 26, 2020, the Family Court granted the mother's motion to dismiss the petition. An order of dismissal, also dated August 26, 2020, without a hearing, dismissed the petition. The father appeals.

"An order of custody may be modified only upon a showing that there has been a subsequent change in circumstances such that modification is required to ensure the best interests of the child" ( Matter of Alphonse v. Alphonse, 189 A.D.3d 1028, 1029, 136 N.Y.S.3d 322 ; see Matter of Shisgal v. Abels, 179 A.D.3d 1070, 1071, 118 N.Y.S.3d 631 ). "Before subjecting children and their parents to additional litigation, courts require that, before a full hearing is ordered, the parent seeking a change of custody must make an evidentiary showing of a change in circumstances demonstrating a need to conduct a full hearing into whether a change of custody is appropriate in order to insure the child's best interests" ( Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103 N.Y.S.3d 445 ; see Matter of Slade v. Haymes, 176 A.D.3d 1078, 1079, 108 N.Y.S.3d 877 ; see also Matter of Fitje v. Fitje, 87 A.D.3d 599, 600, 927 N.Y.S.2d 918 ).

Here, the father failed to make a showing of a change in circumstances, "occurring after the...