Matter of Ettelt v Ettelt
2021 NY Slip Op 03744 [195 AD3d 1453]
June 11, 2021
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, August 4, 2021


[*1]
 In the Matter of Gregory D. Ettelt, Appellant,
v
Billie J. Ettelt, Respondent.

Peter J. Digiorgio, Jr., Utica, for petitioner-appellant.

Kacie M. Crouse, Utica, Attorney for the Child.

Appeal from an order of the Family Court, Herkimer County (Anthony J. Garramone, J.H.O.), dated February 4, 2020, in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition seeking to modify a prior order of custody and visitation.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order that dismissed his petition seeking to modify a prior order of custody and visitation. Contrary to the father's contention, we conclude that Family Court did not abuse its discretion in dismissing his petition without conducting a hearing. "A hearing is not automatically required whenever a parent seeks modification of a custody [or visitation] order" and, here, the father failed to "make a sufficient evidentiary showing of a change in circumstances to require a hearing" (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [4th Dept 2003] [internal quotation marks omitted]; see Matter of Williams v Reid, 187 AD3d 1593, 1594-1595 [4th Dept 2020]; Matter of Fowler v VanGee, 136 AD3d 1320, 1320 [4th Dept 2016]). Present—Centra, J.P., Peradotto, Curran, Winslow and DeJoseph, JJ.