The matters currently before the Court are the mother's petition for sole custody, brought by Order to Show Cause, and a motion, brought by the father, to dismiss that petition. Pursuant to the Order of this Court, dated June 5, 2007, the parties, on consent, currently share joint physical and legal custody of their one child in common, Child B. Child B turns six years old on July 29, 2008.

Petitioner-mother is currently represented by Maureen McBride, Esq. Respondent-father is currently represented by Sari M. Friedman, P.C. Adrienne Flipse Hausch, Esq. was appointed attorney for the child during the initial custody proceedings before this Court.

The basis of mother's petition to modify the current custody arrangement is a two month period of time during which she had temporary sole custody of the subject child. This came about when the mother made allegations that the father had been sexually inappropriate with the child. Once the allegation was made, the father was only allowed supervised parenting, and over the course of two months, when the investigation was pending, the father only saw the child on few occasions and on those occasions for only a short period of time. Prior to the mother's allegation, and after it was determined to be "unfounded" by Child Protective Services, the parents shared joint physical custody with the child living with each parent for one week at a [*2]time. The mother alleges that during the time the father's time with the child was severely curtailed, the child flourished in her custody. She claims the child, normally introverted and withdrawn, suddenly came out of his shell and began to thrive. In essence, it is her position that the current arrangement, of the child spending one week at a time at each parent's house, is too disruptive for the child and is stunting his development. Petitioner provides no substantiation for these claims, other than her own observations contained in her affidavit.Further, the mother asserts the father is not home often during his parenting time as his business forces him to travel for long periods of time. The child is cared for by the father's current wife during these times.

The father refutes these allegations, while calling the mother a drug addict and alcoholic. He repeatedly points out the mother, who is prescribed certain medications, once had a car accident with the child in the car while under the influence of her medications. Though Child Protective Services "indicated" a case against her for maltreatment as a result of driving under the influence of prescription medication with the child in the car, that finding was changed to "unfounded" after a hearing. It was determined that the mother was misinformed regarding the effects certain medications she was taking would have on one another.

In refuting the allegations of the child thriving only while in the mother's care, the father annexed to his motion papers the child's 2007-2008 report card showing that, in almost all categories, the child received the highest possible grade. Teacher comments include, "Has shown steady growth and improvement" and "Has shown progress...Grasps ideas readily." The father also denies traveling when the child is in his care, arguing he plans his trips for the weeks when the child is staying with the mother.

At first glance, these parties seem the least likely parents to have joint physical and legal custody. The mother believes the father was sexually inappropriate with the child and then tends to flee the home when the child comes to stay with him. The father asserts the mother abuses cocaine, alcohol and prescription medication and often acts in a bizarre manner. Yet almost exactly one year ago, each parent consented to the other playing an equal role in raising and caring for the child. The mother now seeks to change that arrangement.

A modification of an order of custody requires the requisite change in circumstances. Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765. A modification should be granted where "...the totality of the circumstances warrants a modification in the best interests of the child." Ganzenmuller v. Rivera, 40 AD3d 756, 757 (2d Dept. 2007), citing Friederwitzer v. Friederwitzer, 55 NY2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Brian S. v. Stephanie P., 34 AD3d 685 (2d Dept. 2006). A party seeking a change in custody is not automatically entitled to a hearing on that issue, but must present an evidentiary showing which would indicate a hearing was warranted. DiVittorio v. DiVittorio, 283 AD2d 390 (2d Dept. 2001), Miller v. Lee, 225 AD2d 778 (2d Dept. 1996). Where no such evidentiary showing is made, dismissal of the petition is proper. Coutsoukis v. Samora, 274 AD2d. 518 (2d Dept. 2000), Rosenberg v. Rosenberg, 261 AD2d 623 (2d Dept. 1999).

Herein, even assuming everything contained in the mother's petition to be true, the allegations do not rise to the level warranting a modification of the order of custody. Walberg v. Rudden, 14 AD3d 572 (2d Dept. 2005). The mother provided no proof for her assertion that the child suddenly progressed while in her sole care. Even had that proof been provided, the two month period of time the child was in her sole care is certainly not a big enough sample of time [*3]for the Court to make the leap that the cause of the progress was either the father's absence, the mother's role as sole custodian or both. Further, the father presented evidence that clearly refutes the mother's assertions. The child's 2007-2008 report card indicates the child consistently showed progress throughout the school year. He scored the highest grade possible in many areas including, "plays and works well with other children", "adjusts to new situations" and "displays self-confidence." As the child has spent one-half of his time living with the father for the entire second half of the school year, it appears the current custody arrangement has not inhibited his emotional or intellectual growth.

Therefore, based on the foregoing, it is

ORDERED that the father's Motion to Dismiss the mother's modification petition is granted in its entirety.

This constitutes the Decision and Order of the Court;

ENTER

________________________________

Hon. Conrad D. Singer

Judge of the Family Court

Dated: July 15, 2008