LaPera v. Restivo

202 A.D.3d 788

158 N.Y.S.3d 858 (Mem)

In the Matter of Frank Michael LAPERA, appellant,

v.Christina Nicole RESTIVO, respondent.

2021–03206

Docket No. V-3778-19/20A

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

Submitted—January 11, 2022

February 9, 2022

Frank Michael LaPera, West Babylon, NY, appellant pro se.

Leslie J. Altman, Garden City, NY, for respondent.

COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Danielle M. Peterson, J.), dated April 12, 2021. The order, without a hearing, dismissed the father's petition to modify a prior order of custody and parental access of the same court dated January 7, 2020, so as to expand his parental access with the parties' child.

ORDERED that the order dated April 12, 2021, is reversed, on the law, without costs or disbursements, the petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for further proceedings consistent herewith.

The parties have one child in common, born in 2019. In November 2020, the father filed a petition to modify the parties' parental access arrangement, as set forth in an order dated January 7, 2020, entered upon consent (hereinafter the January 2020 order). Under the terms of the January 2020 order, the parties were awarded joint legal custody of the child, with residential custody to the mother and parental access to the father twice a week, in four-hour increments. In his modification petition, the father asserted, among other things, that when he consented to the terms of the January 2020 order, he was a probationary employee with the Metropolitan Transportation Authority, and as a result, his work schedule was "inconsistent." The father stated that his probationary employment period had since ended, and his schedule was more consistent, and he was off from work on Saturdays and Sundays. Given this change, the father sought expanded parental access with the child.

The Family Court dismissed the petition, without a hearing, without prejudice, on the ground that the father had failed to establish a sufficient change in circumstances to warrant modification of the January 2020 order. The father appeals.

In order to modify an existing custody or parental access arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Merchant v. Caldwell, 198 A.D.3d 782, 783, 156 N.Y.S.3d 254 ; Matter of Gonzalez v. Santiago, 167 A.D.3d 887, 889, 90 N.Y.S.3d 134 ). Entitlement to a hearing on a modification petition, however, is not automatic; the petitioning parent must make a threshold evidentiary showing of a change in circumstances demonstrating a need for modification in order to insure the child's best interests (see Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103...