Nathan PP. v. Angela PP.

205 A.D.3d 1082

167 N.Y.S.3d 247

In the Matter of NATHAN PP., Appellant,

v.ANGELA PP., Respondent.

(And Another Related Proceeding.)

532042

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

Calendar Date: March 24, 2022

Decided and Entered: May 5, 2022

Liam G.B. Murphy, Ithaca, for appellant.

The Lama Law Firm, LLP, Ithaca (Luciano J. Lama of counsel), for respondent.

Thomas G. Shannan, Ithaca, attorney for the children.

Before: Egan Jr., J.P., Aarons, Reynolds Fitzgerald, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the Family Court of Tompkins County (Rowley, J.), entered August 7, 2020, which, in a proceeding pursuant to Family Ct Act article 6, among other things, granted respondent's motion to dismiss the amended petition.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2010). In December 2017, Family Court entered an order on consent giving the mother and the father joint legal custody over the children, with primary placement to the mother. The consent order created a parenting time schedule and allowed the parties to discuss modifying future exchanges. If an agreement about modifying exchanges could not be reached, the mother and the father could proceed to mediation, and, if mediation was unsuccessful, either party could petition Family Court to resolve the issue without the need to demonstrate a change in circumstances.

In October 2019, after being unable to reach an agreement about a series of modified exchanges through several mediation sessions, the father filed a petition to modify the prior custody order. The mother filed a cross petition and subsequently moved to dismiss the father's petition for failure to state a cause of action. After the father amended his petition, the mother moved to dismiss the amended petition and a hearing was scheduled. After conferencing the matter and without holding an evidentiary hearing, Family Court granted the mother's motion and dismissed the father's amended petition, concluding that the father's allegations were "insufficient to warrant a change from the current order of custody in the best interests of the child." The father appeals.

Generally, in order "[t]o survive a motion to dismiss, [the petitioner is] required to establish a change in circumstances warranting an inquiry into whether the best interests of the child[ ] would be served by modifying the existing custody arrangement" ( Matter of Jessica EE. v. Joshua EE., 188 A.D.3d 1479, 1481, 137 N.Y.S.3d 179 [2020] [internal quotation marks and citations omitted]; see Matter of Sarah OO. v. Charles OO., 198 A.D.3d 1151, 1152, 156 N.Y.S.3d 488 [2021] ). However, parties to a custody proceeding may, like here, stipulate that either party can later seek modification of the custody order without demonstrating a change in circumstances (see Matter of Daniel G. v. Marie H., 196 A.D.3d 801, 803, 151 N.Y.S.3d 475 [2021] ; Matter of Mauro NN. v. Michelle NN., 172 A.D.3d 1493, 1493, 100 N.Y.S.3d 110 [2019] ). Despite eliminating that threshold burden of demonstrating a change in circumstances, a party still " ‘must show that modification of the underlying order is necessary to ensure the child's continued best interests’ " ( Matter of Kimberly H. v. Daniel I., 185 A.D.3d 1170, 1171, 128 N.Y.S.3d 75 [2020], quoting Matter of Tracey L. v. Corey M., 151 A.D.3d 1209, 1210, 55 N.Y.S.3d 828 [2017] ; see Matter of Mauro NN. v. Michelle NN., 172 A.D.3d at 1494, 100 N.Y.S.3d 110 ).

"In determining whether modification of a prior custody order will serve the best interests of the child, courts must consider a variety of factors, including the quality of the parents’ respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being" ( Matter of Austin ZZ. v. Aimee A., 191 A.D.3d 1134, 1136, 142 N.Y.S.3d 122 [2021] [internal quotation marks and citations omitted]; see Matter of Charity K. v. Sultani L., 202 A.D.3d 1346, 1347, 164 N.Y.S.3d 250 [2022] ). Although an evidentiary hearing is generally necessary, "not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing" ( Matter of Sarah OO. v. Charles OO., 198 A.D.3d at 1152, 156 N.Y.S.3d 488 [internal quotation marks and citation omitted]), including where "the party seeking the modification fails to make a sufficient evidentiary showing to warrant a hearing or no hearing is requested and Family Court has sufficient information to undertake a comprehensive independent review of the child[’s] best interests" ( Matter of Gerard P. v. Paula P., 186 A.D.3d 934, 937–938, 130 N.Y.S.3d 105 [2020] [internal quotation marks, brackets and citations omitted]; see Matter of Abigail Y. v. Jerry Z., 200 A.D.3d 1512, 1513, 161 N.Y.S.3d 439 [2021] ).

We find no error with Family Court's...