

Matter of Merchant v Caldwell (2017 NY Slip Op 02991)





Matter of Merchant v Caldwell


2017 NY Slip Op 02991


Decided on April 19, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 19, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
JEFFREY A. COHEN
ROBERT J. MILLER
VALERIE BRATHWAITE NELSON, JJ.


2016-06755
 (Docket No. V-11119-12)

[*1]In the Matter of Roland S. Merchant, Jr., appellant,
v Cameron L. Caldwell, respondent.


Sonnenfeld & Richman LLP, New York, NY (Judith R. Richman and Brad Evan Serlen of counsel), for appellant.
Stutman Advocate Stutman & Lichtenstein, LLP, New York, NY (Jason A. Advocate of counsel), for respondent.
Karen P. Simmons, Brooklyn, NY (Laura Solecki and Janet Neustaetter of counsel), attorney for the child.

DECISION & ORDER
Appeal by the father from an order of the Family Court, Kings County (Judith Waksberg, J.), dated May 23, 2016. The order, insofar as appealed from, without a hearing, granted the mother's motion to dismiss the father's petition to modify the custody provisions of the parties' stipulation of settlement so as to award him sole physical custody, or, in the alternative, sole legal custody, of the parties' child.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parties were never married, and have one child in common. On October 1, 2013, they entered into a so-ordered stipulation of settlement pursuant to which the mother was awarded sole physical custody of the child and the parties shared joint legal custody of the child. In September 2015, the father filed a petition seeking sole physical custody of the child, or, in the alternative, sole legal custody of the child. The mother thereafter moved to dismiss the father's petition. The Family Court, without a hearing, granted the mother's motion to dismiss the father's petition. The father appeals.
A parent who seeks a change of custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Macchio v Macchio, 120 AD3d 560; Connor v Connor, 104 AD3d 638, 639; Salick v Salick, 66 AD3d 757; Jean v Jean, 59 AD3d 599, 600). Here, the father failed to show that there had been a change in circumstances which could support a finding that it was in the child's best interest to change physical custody, or legal custody, to himself and, thus, he failed to meet his threshold burden (see Connor v Connor, 104 AD3d 638; Salvatore v Salvatore, 68 AD3d 966; Matter of Watson v Smith, 52 AD3d 615; Green [*2]v Green, 43 AD3d 867; McNally v McNally, 28 AD3d 526). The father's remaining contention is without merit. Accordingly, the Family Court providently exercised its discretion in granting the mother's motion to dismiss the father's petition without a hearing.
BALKIN, J.P., COHEN, MILLER and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


