State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 2, 2016 522240 

________________________________

In the Matter of HEATHER 

ENGELHART,

Appellant,

v MEMORANDUM AND ORDER

DANIEL BOWMAN,

Respondent.

________________________________

Calendar Date: April 20, 2016

Before: Lahtinen, J.P., McCarthy, Devine, Clark and Mulvey, JJ.

__________

Cynthia Feathers, Glens Falls, for appellant.

Gordon, Tepper & DeCoursey, LLP, Glenville (Jennifer P.

Rutkey of counsel), for respondent.

Jeffrey S. Berkun, Albany, attorney for the child.

__________

Mulvey, J.

Appeal from an order of the Family Court of Albany County

(Maney, J.), entered November 24, 2015, which, sua sponte,

dismissed petitioner's application, in a proceeding pursuant to

Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) and respondent

(hereinafter the father) divorced in March 2013. Pursuant to the

terms of their judgment of divorce, the father received sole

custody of the parties' two children (born in 2006 and 2007) and

the mother received parenting time on Wednesday evenings and

alternate weekends. The mother appealed from the judgment of

divorce, and, on appeal, this Court modified the judgment to the
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extent of awarding the mother additional parenting time on

certain holidays and school vacations (Bowman v Engelhart, 112

AD3d 1187, 1189-1190 [2013]). 

In June 2015, the mother commenced this proceeding pursuant

to Family Ct Act article 6 seeking joint legal custody and

primary physical custody of the children. During an August 2015

hearing, Family Court, sua sponte, dismissed the mother's

petition on the basis that the mother had failed to allege that

she and the father could cooperate for the good of the children

and that, absent such an allegation, she could not request joint

legal custody. Family Court subsequently denied the mother's

application to orally amend her petition to seek sole legal

custody of the children. Thereafter, Family Court issued a

written order that purported to grant a motion by the father to

dismiss the petition.1 The mother appeals.

"In any modification proceeding, the threshold issue is

whether there has been a change in circumstances since the prior

custody order significant enough to warrant a review of the issue

of custody to ensure the continued best interests of the

children" (Matter of Patricia P. v Dana Q., 106 AD3d 1386, 1386-

1387 [2013] [citations omitted]; accord Matter of Hill v Dean,

135 AD3d 990, 994 [2016]). The petitioner "bears the burden of

demonstrating such change in circumstances, and his [or her]

petition must 'allege facts which, if established, would afford a

basis for relief'" (Matter of Christopher B. v Patricia B., 75

AD3d 871, 872 [2010] [internal citation omitted], quoting Matter

of Bryant-Bosshold v Bosshold, 273 AD2d 717, 718 [2000]; see

Matter of Bjork v Bjork, 23 AD3d 784, 785 [2005], lv denied 6

NY3d 707 [2006]). "Generally[,] an evidentiary hearing is

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 children's best interests" (Matter of Chittick v

Farver, 279 AD2d 673, 675 [2001] [citations omitted]; see Matter

1 The parties deny that the father made a motion to dismiss

the petition.
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of Freedman v Horike, 107 AD3d 1332, 1333 [2013]).

In her petition, the mother alleged, among other things,

that the father was charged with reckless endangerment, vehicular

assault and driving while intoxicated after he crashed a car in

January 2015, thereby causing injury to himself and his three

passengers. The mother also alleged that the father engaged in a

course of conduct that alienated the children from her, that the

children desired to spend more time with her and that her work

schedule had become more flexible since completing her medical

residency. If established after a hearing, these allegations

could afford a basis for modifying the prior custodial

arrangement and, thus, Family Court erred in dismissing the

petition without first conducting a hearing (see Matter of

Harrell v Fox, 137 AD3d 1352, 1353-1354 [2016]; Matter of

Christopher B. v Patricia B., 75 AD3d at 872-873). Given that

the mother's petition places both legal and physical custody in

issue, we further note that if, after a hearing, the mother makes

the requisite showing of a change in circumstances sufficient to

warrant a best interests inquiry and Family Court determines that

joint legal custody is not feasible, it is "'incumbent upon

Family Court to determine a custodial arrangement based upon the

best interests of the child[ren] despite the absence' of a

petition definitively seeking sole custody" (Matter of Kowatch v

Johnson, 68 AD3d 1493, 1495 [2009], lv denied 14 NY3d 704 [2010],

quoting Matter of Scala v Parker, 304 AD2d 858, 860 [2003]; see

Matter of Mahoney v Regan, 100 AD3d 1237, 1237-1238 [2012], lv

denied 20 NY3d 859 [2013]).

We are unpersuaded by the mother's remaining contention

that Family Court's dismissal of the petition without a hearing

was precipitated by bias.

Lahtinen, J.P., McCarthy and Devine, JJ., concur; Clark,

J., not taking part.
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ORDERED that the order is reversed, on the law, without

costs, and matter remitted to the Family Court of Albany County

for further proceedings not inconsistent with this Court's

decision.

ENTER:

Robert D. Mayberger

Clerk of the Court