Full evidentiary hearings are generally needed to assess whether there has been a sufficient change of circumstances to warrant modifying an existing custody order. The judge should not make a decision on written papers alone.
We agree with the mother and the attorney for the child that the change in circumstances alleged by the mother in her petition was sufficient to withstand a motion to dismiss and that Family Court therefore erred in dismissing the mother’s modification petition without conducting a hearing. “The threshold inquiry in any custody modification proceeding is whether there has been a change in circumstances since entry of the prior custody order that, if established, warrants a review of the issue of custody to ensure the continued best interests of the child.”
While not every petition in a Family Ct Act article 6 proceeding is automatically entitled to a hearing, an evidentiary hearing is generally 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 child’s best interests. In assessing whether the petitioner has alleged the requisite change in circumstances, so as to withstand a motion to dismiss for failure to state a claim, Family Court must liberally construe the petition, accept the facts alleged in the petition as true, afford the petitioner the benefit of every favorable inference and resolve all credibility questions in favor of the petitioner.
The change in circumstances alleged by the mother in her petition included, among other things, the child’s strong desire to relocate with the mother to New Jersey and a recent breakdown in the child’s relationship with the father. In concluding that these allegations were facially insufficient, Family Court failed to accept the mother’s allegations as true, afford her the benefit of every favorable inference and resolve credibility issues in her favor. For example, without conducting a fact-finding hearing or a Lincoln hearing, Family Court discounted the mother’s allegation that the relationship between the father and the child had recently broken down, stating that such information was not relayed through the child’s attorney and that the child had not reported dissatisfaction with living with the father.
The court also failed to adequately take into account the fact that more than four years had passed between Family Court’s denial of the mother’s relocation request and the commencement of the instant proceeding. At the time of this proceeding, the child was 14 years old and, although not dispositive, her wishes could potentially support the finding of a change in circumstances. Contrary to Family Court’s conclusion, when viewed in the light most favorable to the mother, her allegations regarding the child’s preferences and a recent breakdown in the father-child relationship were sufficient to warrant a hearing on the issue of whether there had been a change in circumstances necessitating an inquiry into the best interests of the child. Family Court therefore erred in granting the father’s motion to dismiss and in awarding the father counsel fees. Consequently, we reverse Family Court’s order and remit the matter to Family Court for a fact-finding hearing and a Lincoln hearing, with such proceedings to be commenced within 45 days of the date of this decision. Ever mindful of the importance that the child’s position be heard, under these circumstances, Family Court should not reappoint the trial attorney for the child.
Sarah OO. v. Charles OO., – NYS3d – , 2021 WL 4897582 (3rd Dep’t. 2021)
