Hughes v. Davis , 890 N.Y.2d 874 ( 2009 )

Memorandum: Upon her return from active military duty, petitioner mother filed a petition seeking to modify a prior order of custody. Family Court granted respondent father’s motion to dismiss the petition without conducting a hearing based on its determination that the mother had “failed to show a change of circumstances.” We conclude, based on the recent enactment of Family Court Act § 651 (f), that the petition should be reinstated.

It is well settled that, in seeking to modify an existing order of custody, “[t]he petitioner must make a sufficient evidentiary showing of a change in circumstances to require a hearing on the issue whether the existing custody order should be modified” (Matter of Di Fiore v Scott, 2 AD3d 1417, 1417-1418 [2003] [internal quotation marks omitted]). Pursuant to Family Court Act § 651 (f) (3), “the return of the parent from active military service, deployment or temporary assignment shall be considered a substantial change in circumstances. Upon the request of either parent, the court shall determine on the basis of the child’s best interests whether the custody judgment or order previously in effect should be modified” (see Domestic Relations Law § 75-1 [3]; § 240 [1] [a-2] [3]). Here, the mother alleged that she had returned from active military duty and thus made a sufficient evidentiary showing of a substantial change in circumstances (see generally Di Fiore, 2 AD3d 1417 [2003]). Present — Martoche, J.P, Smith, Fahey, Garni and Pine, JJ.