Bearfield v. Sink ( 2006 )

The case is held, the motion to relieve counsel of assignment is granted and new counsel is to be assigned. Memorandum: The record establishes that on June 7, 2005, the parties consented to an order of joint custody with regard to their daughter, with primary placement to father. An order memorializing this agreement was entered on July 8, 2005. On July 11, 2005, mother filed a modification petition seeking custody of the child. Family Court dismissed the petition, without a hearing, based upon the failure to state a change of circumstances. Mother’s assigned counsel on appeal has moved to be relieved of the assignment and has submitted a brief in which he concludes that there are no nonfrivolous issues meriting this Court’s consideration (see Matter of Jordan S., 179 AD2d 1091 [1992]). The facts raise the question whether mother made a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified. Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel’s review of the record may disclose. (Appeal from order of Family Court, Cattaraugus County, Paul B. Kelly, J.H.O.—Custody). Present— Pigott, Jr., PJ., Hurlbutt, Scudder, Green and Hayes, JJ.