Mulholland v. Mulholland

202 A.D.3d 963

159 N.Y.S.3d 701 (Mem)

In the Matter of Shawn MULHOLLAND, appellant,

v.Jacquelene MULHOLLAND, respondent.

2021–03468

Docket Nos. V–3495–20/20A, V–3496–20/20A

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

Argued—January 18, 2022

February 16, 2022

The Yitzhak Law Group, Great Neck, N.Y. (Erica T. Yitzhak of counsel), for appellant.

Jacquelene Mulholland, Brooklyn, NY, respondent pro se.

Ronna L. DeLoe, Larchmont, NY, attorney for the children.

VALERIE BRATHWAITE NELSON, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, 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, Kings County (Danielle M. Rodriguez, Ct. Atty. Ref.), dated April 15, 2021. The order, without a hearing, dismissed the father's petition to modify the parties’ stipulation of custody and parental access dated June 16, 2016, so as to award the parties joint legal and residential custody of their children.

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

The father and the mother were previously married and have two children together. In a stipulation of custody and parental access dated June 16, 2016, which was incorporated but not merged into the parties’ judgment of divorce dated November 13, 2017, the mother was awarded sole legal and residential custody of the children, and the father was awarded parental access. In February 2020, the father commenced this proceeding to modify the stipulation so as to award the parties joint legal and residential custody of the children. The mother moved to dismiss the father's petition for failure to state a cause of action. Without holding a hearing, the Family Court granted the mother's motion and dismissed the father's petition. The court found that the father had "failed to make an evidentiary showing that there has been a change in circumstances that would warrant a modification of the parties’ [s]tipulation." 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 Edem v. Wondemagegehu, 199 A.D.3d 795, 796, 158 N.Y.S.3d 140, quoting Matter of Alphonse v. Alphonse, 189 A.D.3d 1028, 1029, 136 N.Y.S.3d 322 ). " ‘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 Edem v. Wondemagegehu, 199 A.D.3d at 796, 158 N.Y.S.3d 140, quoting Matter of Newton v. McFarlane, 174 A.D.3d 67, 76–77, 103 N.Y.S.3d 445 ).

Here, the Family Court properly dismissed the father's petition, as the father did not make an evidentiary showing of a change in circumstances (see Matter of Edem...