Parascondola v. Romano

213 A.D.3d 768

182 N.Y.S.3d 735

In the Matter of Danielle PARASCONDOLA, respondent,

v.Michael ROMANO, appellant.

2021-06452

Docket Nos. V-26286-10, V-26287-10

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

Argued—January 6, 2023

February 8, 2023

The Edelsteins, Faegenburg & Brown, New York, NY (Adam Edelstein of counsel), for appellant.

Louisa Floyd, Brooklyn, NY, attorney for the child Anthony J. P.

Brian Zimmerman, Brooklyn, NY, attorney for the child Christian J. P.

VALERIE BRATHWAITE NELSON, J.P., JOSEPH J. MALTESE, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals, in part by permission, from an amended order of the Family Court, Kings County (Javier E. Vargas, J.), dated August 13, 2021. The amended order, insofar as appealed from, denied, without a hearing, the father's motion, inter alia, to modify an order of the same court (Karen Finkel Wohlforth, Ct. Atty. Ref.) dated July 26, 2011, so as to award him sole legal and physical custody of the parties’ children, and prohibited the father from filing any petitions, writs, or motions in the Family Court without counsel review and prior court approval.

ORDERED that the amended order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof prohibiting the father from filing any petitions, writs, or motions in the Family Court without counsel review and prior court approval; as so modified, the amended order is affirmed insofar as appealed from, without costs or disbursements.

In January 2021, the father moved, inter alia, to modify an order dated July 26, 2011, so as to award him sole legal and physical custody of the parties’ children. In an amended order dated August 13, 2021, the Family Court, inter alia, denied, without a hearing, the father's motion and prohibited the father from filing any new petitions, writs, or motions in the Family Court without counsel review and prior court approval. The father appeals.

"Modification of an existing court-sanctioned custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]" ( Matter of Errante v. Murry, 172 A.D.3d 711, 712, 99 N.Y.S.3d 379 [internal quotation marks omitted]). "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 ).

Here, the Family Court properly denied, without a hearing, the father's motion, inter alia, to modify the prior order of custody. The facts alleged in the father's motion papers were insufficient to meet the threshold evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Edem v....