Stevens v. Carey

188 A.D.3d 895

132 N.Y.S.3d 313 (Mem)

In the Matter of Robert STEVENS, etc., appellant,

v.Jean J. CAREY, et al., respondents.

2019–10925

Docket No.V–576–13

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

Submitted—October 6, 2020

November 12, 2020

Del Atwell, East Hampton, NY, for appellant.

Kathleen M. Valletta, Carmel, NY, for respondents.

William E. Horwitz, Briarcliff Manor, NY, attorney for the child.

JOSEPH J. MALTESE, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Putnam County (James T. Rooney, J.), entered August 23, 2019. The order dismissed, without prejudice, the father's petition to modify a prior order of custody and parental access of the same court entered July 3, 2018.

ORDERED that the order entered August 23, 2019, is affirmed, without costs or disbursements.

The subject child was born in 2011. Following the death of the child's mother, the Family Court, in an order entered July 3, 2018 (hereinafter the 2018 order), granted the petition of the maternal grandparents for sole legal and physical custody of the child. The father was awarded parental access, to be supervised by a designated licensed clinical social worker.

On January 23, 2019, the father filed the instant petition to modify the 2018 order, seeking unsupervised parental access with the child. The maternal grandparents and the attorney for the child opposed the petition. Following a number of court appearances at which it was requested that the father present a comprehensive substance abuse evaluation, inclusive of information provided by collateral sources, the Family Court, in an order entered August 23, 2019, dismissed the father's petition, without prejudice to his refiling upon submission of such an evaluation. The father appeals.

"Modification of an existing court-sanctioned custody or [parental access] 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" ( Matter of Spencer v. Killoran, 147 A.D.3d 862, 863, 46 N.Y.S.3d 658 [internal quotation marks omitted]; see Matter of Newton v. McFarlane, 174 A.D.3d 67, 76, 103 N.Y.S.3d 445 ; Henrie v. Henrie, 163 A.D.3d 927, 928, 79 N.Y.S.3d 691 ; Matter of Feliciano v. King, 160 A.D.3d 854, 855, 74 N.Y.S.3d 342 ). "[T]he burden is on the party seeking modification to make, at the outset, an evidentiary showing of a sufficient change in circumstances" ( Matter of Scott v. Powell, 146 A.D.3d 964, 965, 45 N.Y.S.3d 557 ).

Here, the father failed to make an evidentiary showing of a change in circumstances which would necessitate a modification of the parental access arrangements to ensure the best interests of the...