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Besen v. Besen

127 A.D.3d 1076 Court N.Y. App. Div. Decision date 2015-04-22 English

Judges Eng, P.J., Leventhal, Hall and Roman, JJ., concur.

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p. 1076
In the Matter of Margaret Besen, Appellant, v Stuart Besen, Respondent.
[5 NYS3d 891]—

Appeal from an order of the Family Court, Suffolk County (David Freundlich, J.), dated April 17, 2014. The order, in effect, dismissed, without a hearing, the mother’s petition, inter alia, to modify the custody provisions of the parties’ judgment of divorce so as to award her custody of the parties’ children.

Ordered that the order is affirmed, without costs or disbursements.

An order or judgment awarding custody or visitation may be modified upon a showing that there has been a subsequent change of circumstances such that modification is required to ensure the continued best interests of the child (see Family Ct Act § 467 [b] [ii]; Whitehead v Whitehead, 122 AD3d 921 [2014];

p. 1077
Kollmar v Kollmar, 100 AD3d 712 [2012]). A party seeking such a modification is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Resnick v Ausburn, 123 AD3d 728 [2014]; Whitehead v Whitehead, 122 AD3d 921 [2014]; Macchio v Macchio, 120 AD3d 560 [2014]). Here, the mother’s allegations were unsubstantiated and conclusory, or did not allege a material change in circumstances (see Magee v Magee, 119 AD3d 658 [2014]; Connor v Connor, 104 AD3d 638 , 639 [2013]; Matter of Palmiotti v Piscitelli, 100 AD3d 637 , 638 [2012]). To the extent that the mother’s petition was predicated upon difficulties she allegedly encountered in scheduling appointments for therapeutic supervised visitation with the service provider designated in the parties’judgment of divorce, we note that the judgment permits the parties to mutually agree upon another service provider. Accordingly, the Family Court properly, in effect, dismissed, without a hearing, the mother’s petition, inter alia, to modify the custody provisions of the parties’ judgment of divorce so as to award her custody of the parties’ children.

Eng, P.J., Leventhal, Hall and Roman, JJ., concur.

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