                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 2, 2016                      522240
________________________________

In the Matter of HEATHER
   ENGELHART,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

DANIEL BOWMAN,
                    Respondent.
________________________________


Calendar Date:   April 20, 2016

Before:   Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

                             __________


     Cynthia Feathers, Glens Falls, for appellant.

      Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P.
Rutkey of counsel), for respondent.

     Jeffrey S. Berkun, Albany, attorney for the child.

                             __________


Mulvey, J.

      Appeal from an order of the Family Court of Albany County
(Maney, J.), entered November 24, 2015, which, sua sponte,
dismissed petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, to modify a prior order of custody.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) divorced in March 2013. Pursuant to the
terms of their judgment of divorce, the father received sole
custody of the parties' two children (born in 2006 and 2007) and
the mother received parenting time on Wednesday evenings and
alternate weekends. The mother appealed from the judgment of
divorce, and, on appeal, this Court modified the judgment to the
                               -2-                522240

extent of awarding the mother additional parenting time on
certain holidays and school vacations (Bowman v Engelhart, 112
AD3d 1187, 1189-1190 [2013]).

      In June 2015, the mother commenced this proceeding pursuant
to Family Ct Act article 6 seeking joint legal custody and
primary physical custody of the children. During an August 2015
hearing, Family Court, sua sponte, dismissed the mother's
petition on the basis that the mother had failed to allege that
she and the father could cooperate for the good of the children
and that, absent such an allegation, she could not request joint
legal custody. Family Court subsequently denied the mother's
application to orally amend her petition to seek sole legal
custody of the children. Thereafter, Family Court issued a
written order that purported to grant a motion by the father to
dismiss the petition.1 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 interests of the
children" (Matter of Patricia P. v Dana Q., 106 AD3d 1386, 1386-
1387 [2013] [citations omitted]; accord Matter of Hill v Dean,
135 AD3d 990, 994 [2016]). The petitioner "bears the burden of
demonstrating such change in circumstances, and his [or her]
petition must 'allege facts which, if established, would afford a
basis for relief'" (Matter of Christopher B. v Patricia B., 75
AD3d 871, 872 [2010] [internal citation omitted], quoting Matter
of Bryant-Bosshold v Bosshold, 273 AD2d 717, 718 [2000]; see
Matter of Bjork v Bjork, 23 AD3d 784, 785 [2005], lv denied 6
NY3d 707 [2006]). "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 children's best interests" (Matter of Chittick v
Farver, 279 AD2d 673, 675 [2001] [citations omitted]; see Matter


     1
        The parties deny that the father made a motion to dismiss
the petition.
                              -3-                522240

of Freedman v Horike, 107 AD3d 1332, 1333 [2013]).

      In her petition, the mother alleged, among other things,
that the father was charged with reckless endangerment, vehicular
assault and driving while intoxicated after he crashed a car in
January 2015, thereby causing injury to himself and his three
passengers. The mother also alleged that the father engaged in a
course of conduct that alienated the children from her, that the
children desired to spend more time with her and that her work
schedule had become more flexible since completing her medical
residency. If established after a hearing, these allegations
could afford a basis for modifying the prior custodial
arrangement and, thus, Family Court erred in dismissing the
petition without first conducting a hearing (see Matter of
Harrell v Fox, 137 AD3d 1352, 1353-1354 [2016]; Matter of
Christopher B. v Patricia B., 75 AD3d at 872-873). Given that
the mother's petition places both legal and physical custody in
issue, we further note that if, after a hearing, the mother makes
the requisite showing of a change in circumstances sufficient to
warrant a best interests inquiry and Family Court determines that
joint legal custody is not feasible, it is "'incumbent upon
Family Court to determine a custodial arrangement based upon the
best interests of the child[ren] despite the absence' of a
petition definitively seeking sole custody" (Matter of Kowatch v
Johnson, 68 AD3d 1493, 1495 [2009], lv denied 14 NY3d 704 [2010],
quoting Matter of Scala v Parker, 304 AD2d 858, 860 [2003]; see
Matter of Mahoney v Regan, 100 AD3d 1237, 1237-1238 [2012], lv
denied 20 NY3d 859 [2013]).

      We are unpersuaded by the mother's remaining contention
that Family Court's dismissal of the petition without a hearing
was precipitated by bias.

      Lahtinen, J.P., McCarthy and Devine, JJ., concur; Clark,
J., not taking part.
                              -4-                  522240

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




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
