Appellate Division of the Supreme Court of New York, 2011

Figueroa v. Lewis

Appellate Division of the Supreme Court of New York · Decided February 15, 2011

81 A.D.3d 823; 916 N.Y.S.2d 833

Cases that cite this one

6 later published cases cite this decision.

Matter of Castagnini v. Hyman-Hunt (Appellate Division of the Supreme Court of New York 2014)
Magee v. Magee (Appellate Division of the Supreme Court of New York 2014)
McNelis v. Carrington (Appellate Division of the Supreme Court of New York 2013)
McNelis v. Carrington (Appellate Division of the Supreme Court of New York 2013)
Peralta v. Irrizary (Appellate Division of the Supreme Court of New York 2012)
Scholar v. Timinisky (Appellate Division of the Supreme Court of New York 2011)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In a visitation proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Dutchess County (Sammarco, J.), dated April 8, 2010, which, without a hearing, dismissed his petition to modify a prior order of visitation.

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

“Modification of an existing custody or visitation 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[ren]” (Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1148-1149 [2010]; see Matter of Mazzola v Lee, 76 AD3d 531 [2010]; Matter of Balgley v Cohen, 73 AD3d 1038 [2010]; Matter *824of Riedel v Riedel, 61 AD3d 979 [2009]; Matter of Molinari v Tuthill, 59 AD3d 722, 723 [2009]). While “[i]n general, an evidentiary hearing is necessary regarding a modification of visitation” (Matter of Perez v Sepulveda, 51 AD3d 673, 673 [2008]), one who seeks a change in visitation is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing (see Matter of Reilly v Reilly, 64 AD3d 660 [2009]; Matter of Rodriguez v Hangartner, 59 AD3d 630, 630-631 [2009]; Matter of Walberg v Rudden, 14 AD3d 572 [2005]) and “a hearing will not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child[ren’s] best interest” (Matter of Hom v Zullo, 6 AD3d 536 [2004]; see Matter of Perez v Sepulveda, 51 AD3d at 673; Matter of Smith v Molody-Smith, 307 AD2d 364 [2003]).

Here, the father failed to allege a sufficient change in circumstances between the time the order of visitation was issued and the filing of his petition which would warrant a hearing on the issue of whether he was entitled to supervised therapeutic visitation. Accordingly, the Family Court properly dismissed the petition (see Matter of Collazo v Collazo, 78 AD3d 1177 [2010]; Matter of Varricchio v Varricchio, 68 AD3d 774, 775 [2009]; Matter of Reilly v Reilly, 64 AD3d 660 [2009]; Matter of Rodriguez v Hangartner, 59 AD3d at 631). Dillon, J.P., Covello, Florio and Hall, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.