                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 15, 2016                   522120
________________________________

In the Matter of JENNIFER M.
   POLLOCK,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

JEREMY W. WAKEFIELD,
                    Respondent.
________________________________


Calendar Date:   November 21, 2016

Before:   McCarthy, J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


     Teresa C. Mulliken, Harpersfield, for appellant.

     Larisa Obolensky, Delhi, attorney for the child.

                             __________


Aarons, J.

      Appeal from an order of the Supreme Court (Dowd, J.),
entered October 29, 2015 in Chenango County, which partially
granted petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for modification of a prior order of
custody and visitation.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a child born in 2009.
Pursuant to a May 2015 order entered on consent, the parties were
awarded joint custody and shared placement of the child. In
September 2015, the mother commenced this proceeding pro se,
seeking sole legal and physical custody of the child, alleging
that the father had become intoxicated and threatened to kill her
and take the child. After a court appearance, Supreme Court
modified the prior order, without conducting an evidentiary
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hearing, by appointing the father's girlfriend as the person
responsible for transporting the child between the two parties
and by setting out a schedule of physical custody of the child
for Thanksgiving and Christmas, but otherwise continued the
order. The mother appeals.

      "In any modification proceeding, the threshold issue is
whether there has been a change in circumstances since the prior
custody order significant enough to warrant a review of the issue
of custody to ensure the continued best interest of the child[]"
(Matter of Patricia P. v Dana Q., 106 AD3d 1386, 1386 [2013]
[citations omitted]; see Matter of Miller v Bush, 141 AD3d 776,
776-777 [2016]). A petition filed by a pro se litigant "should
be construed liberally when considering whether [it] sufficiently
alleged a change in circumstances" (Matter of Ford v Baldi, 123
AD3d 1399, 1400 [2014]). "While not every petition in a Family
Ct Act article 6 proceeding is automatically entitled to a
hearing, generally an evidentiary hearing is necessary and should
be conducted unless the party seeking the modification fails to
make a sufficient evidentiary showing to warrant a hearing or no
hearing is requested and the court has sufficient information to
undertake a comprehensive independent review of the child's best
interests" (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011]
[internal quotation marks, brackets and citations omitted];
accord Matter of Giovanni v Hall, 86 AD3d 676, 677 [2011]).

      In our view, the mother raised sufficient allegations
against the father to warrant an evidentiary hearing concerning
custody of the child. According to the petition, the father
became intoxicated and made threatening text messages and phone
calls to the mother. The mother called the police and, according
to the police report, while the police were at her residence, the
father called again and threatened to harm a police officer.
Thereafter, the father drove over to the mother's residence and
was arrested. Although the father informed Supreme Court that
this was an isolated incident, we find that the mother set forth
sufficient facts that, if established at an evidentiary hearing,
could support granting the relief sought. Therefore, Supreme
Court erred in making its determination without holding a hearing
(see Matter of Ford v Baldi, 123 AD3d at 1400; Matter of Freedman
v Horike, 107 AD3d 1332, 1333-1334 [2013]). We also note that
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the prior custody order was entered upon consent of the parties
and there has not yet been a plenary hearing regarding the
custody of this child. Accordingly, we reverse and remit the
matter to Supreme Court for a hearing to resolve the issues of
change in circumstances and the best interests of the child (see
Matter of Giovanni v Hall, 86 AD3d at 677).

     McCarthy, J.P., Lynch, Rose and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
