Wednesday, October 1, 2014

NEW YORK CHILD CUSTODY - SEEKING A HEARING ON MODIFYING A VISITATION ARRANGEMENT

Magee v Magee 2014 NY Slip Op 05163 Decided on July 9, 2014 Appellate Division, Second Department (emphasis supplied)

""Modification of an existing visitation arrangement is permissible only upon the showing of a material change of circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" (Vaccaro v Vaccaro, 83 AD3d 691). "[O]ne who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing" (Matter of Collazo v Collazo, 78 AD3d 1177). Contrary to the father's contention, the Supreme Court properly denied, without a hearing, his motion to modify the provisions of the parties' stipulation of settlement regarding custody and visitation (see Matter of Sullivan v Moore, 95 AD3d 1223; Matter of Francois v Grimm, 84 AD3d 1082; Matter of Figueroa v Lewis, 81 AD3d 823; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615, 616). The father's assertions were unsubstantiated and conclusory or did not allege a material change in circumstances. Accordingly, he failed to make the requisite showing (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638; Matter of Aronowich-Culhane v Forunier, 94 AD3d 1114, 1115)."

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