Matter of Castagnini v. Hyman-Hunt

Matter of Castagnini v Hyman-Hunt (2014 NY Slip Op 08839)

Matter of Castagnini v Hyman-Hunt

2014 NY Slip Op 08839

Decided on December 17, 2014

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 December 17, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
BETSY BARROS, JJ.

2012-11266
(Docket Nos. V-17287-02, V-20398-02)

[*1]In the Matter of Paul Castagnini, appellant,

v

Lori M. Hyman-Hunt, respondent.

Peter Dailey, New York, N.Y., for appellant.

Tennille M. Tatum-Evans, New York, N.Y., for respondent.

DECISION & ORDER

Appeal from an order of the Family Court, Kings County (Michael L. Katz, J.), dated November 27, 2012. The order, without a hearing, dismissed the father's petition to modify so much of a prior order of that court as terminated his visitation.

ORDERED that the order dated November 27, 2012, is affirmed, without costs or disbursements.

Where a court has previously sanctioned a custody or visitation arrangement, the " [m]odification of [that] arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child'" (Matter of Mazzola v Lee, 76 AD3d 531, 531, quoting Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149). Generally, an evidentiary hearing is necessary in determining whether a modification of visitation is warranted (see Matter of Figueroa v Lewis, 81 AD3d 823, 824; Matter of Perez v Sepulveda, 51 AD3d 673, 673). However, a parent seeking a change of visitation is not automatically entitled to a hearing, but must make an evidentiary showing of a change in circumstances sufficient to warrant a hearing (see Matter of Figueroa v Lewis, 81 AD3d at 824; Matter of Ross v Ross, 68 AD3d 878, 878-879; Matter of Reilly v Reilly, 64 AD3d 660, 660; Matter of Rodriguez v Hangartner, 59 AD3d 630, 630-631). Here, the father failed to allege a sufficient change in circumstances between the issuance of a custody order by the Family Court on May 8, 2009, and the filing of his petition. Accordingly, the Family Court properly dismissed the petition without a hearing (see Matter of Collazo v Collazo, 78 AD3d 1177; Matter of Walberg v Rudden, 14 AD3d 572).

RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court