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FATHER MADE OUT A PRIMA FACIE CASE FOR A MODIFICATION OF CUSTODY BASED UPON LOSS OF EMPLOYMENT, PETITION SHOULD NOT HAVE BEEN DISMISSED, REMITTED FOR A CONTINUED HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition to modify the custody arrangement should not have been dismissed and the matter was remitted for a continued hearing. Father’s proof had made out a prima facie case based upon the loss of employment:

… [F]ather petitioned to modify the order of custody and parental access to remove the requirement that the parental access be professionally supervised at his expense, on the ground that he had recently lost his job and could not afford the cost of professional supervision. At a hearing on his petition, the father testified that he had lost his job in February 2016, a few months after the order of custody and parental access was made, and since that time, he had exercised parental access with the child on a limited basis due to the cost of professional supervision. He admitted that the cost of professional supervision was prohibitive even when he was employed but that, since losing his job, his parental access had further decreased. …

A party seeking modification of an existing custody or parental access order must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child … . The best interests of the child are determined by a review of the totality of the circumstances … . In deciding a motion to dismiss for failure to establish a prima facie case, the court must accept the petitioner’s evidence as true and afford the petitioner the benefit of every favorable inference that can reasonably be drawn therefrom … .

Here, accepting the father’s evidence as true and affording him the benefit of every favorable inference, the father presented sufficient prima facie evidence of a change of circumstances which might warrant modification of parental access in the best interests of the child. Matter of Gonzalez v Santiago, 2018 NY Slip Op 08652, Second Dept 12-19-18

 

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