           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

366
CAF 11-01012
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF KELLY DIPAOLO,
PETITIONER-APPELLANT,

                      V                           MEMORANDUM AND ORDER

MATTHEW K. AVERY, RESPONDENT-RESPONDENT.


EDWARD G. KAMINSKI, UTICA, FOR PETITIONER-APPELLANT.

DOREEN M. ST. THOMAS, ATTORNEY FOR THE CHILDREN, UTICA, FOR BREANA A.
AND TRYSTA A.


     Appeal from an order of the Family Court, Oneida County (Joan E.
Shkane, J.), entered April 11, 2011 in a proceeding pursuant to Family
Court Act article 6. The order dismissed the petition for
modification of a prior custody order.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petition is
reinstated and the matter is remitted to Family Court, Oneida County,
for a hearing on the petition in accordance with the following
Memorandum: Petitioner mother contends on appeal that Family Court
erred in sua sponte dismissing her petition seeking modification of a
prior custody order by awarding her primary custody of the children
without conducting a hearing and after a judicial hearing officer had
denied respondent father’s motion to dismiss the petition. We agree.
The petition alleged that modification of the existing custody
arrangement, pursuant to which the father had primary custody, was
warranted because, inter alia, the mother and her current husband have
completed counseling and have a stable home. In her bill of
particulars, the mother added the allegation that the father was not
involved in the children’s schooling and had refused to obtain
counseling for the children to enable them to address their adjustment
and coping issues. We thus conclude that the mother “made a
sufficient evidentiary showing of a change in circumstances to warrant
a hearing” (Matter of Mayer v Londraville, 26 AD3d 758; cf. Matter of
Di Fiore v Scott, 2 AD3d 1417, 1417-1418). We therefore reverse the
order, reinstate the petition and remit the matter to Family Court for
a hearing on the petition before a different judge.



Entered:    March 16, 2012                      Frances E. Cafarell
                                                Clerk of the Court
