The following papers numbered 1 to 31 were read on this motion to dismiss the petition and for sanctions pursuant to 22 NYCRR §130-1.1 and FCA §438: Papers: No(s). Exhibits Notice of Motion 1 Affirmation of Ellen W. Maurer, Esq. in Support 2-10 A-I Affidavit of Barrington W. Fields, Jr. in Support 11 Affirmation of Preston J. Postlethwaite, Esq. in Opposition 12-15 A-C Affidavit of Malai Phengthalangsy in Opposition 16-20 A-D Reply Affidavit of Barrington W. Fields Jr. in Further Support 21-31 A-J NOTICE: PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE OF MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. ORDER AND DECISION In this custody and visitation proceeding brought under Article 6 of the Family Court Act, respondent Barrington W. Fields Jr. (“Respondent”) moves to dismiss the petition, for an order directing petitioner Malai Phengthalangsy (“Petitioner”) to pay a sum of $3,600 in legal fees as a sanction pursuant to 22 NYCRR §130-1.1 and FCA §438, and for such other and further relief as the court may deem just and proper. After review of the matter, including the motion papers and exhibits cited above, procedural history of the case, and following oral argument held on March 10, 2022, the motion is granted in part and the petition is dismissed. BACKGROUND Petitioner and Respondent are the parents of one child, Barrington W. Fields III (the “child,” born April 16, 2010). On January 30, 2015, the New York Family Court, County of Kings, entered an order on consent of the parties directing sole physical and legal custody of the child to Respondent and granting Respondent final decision-making authority on major issues concerning the child’s health, medical, dental, and educational needs (the “Custody Order”) (Fields aff in support, exhibit A). The Custody Order also set forth a visitation schedule, which was later modified pursuant to an order dated December 5, 2017 (the “2017 Order”). The 2017 Order provides that Petitioner will have parenting time each week on an alternating weekend schedule, beginning Friday at 6:00 p.m. through Monday at 8:00 a.m. on week 1 and beginning Friday at 6:00 p.m. through Saturday at 6:00 p.m. on week 2. On April 29, 2021, Petitioner filed a modification petition seeking to modify the Custody Order and give Petitioner full physical custody of the child and joint legal custody, with final decision-making authority for Petitioner (Docket Nos. V-02260-20/20B & V-02258-20/20B). The modification petition alleges that there has been a substantial change in circumstances because Respondent “repeatedly and unreasonably fails to communicate with Petitioner [] regarding the child’s health, medical, dental, and educational issues,” “Respondent deliberately alienates Petitioner [] by telling the subject child that Petitioner [] does not want to see subject child any more than has been ordered by the Court,” Petitioner’s financial situation has improved and she is now able to provide a stable living environment for the child, and “[c]rucially, the status quo is causing irreparable damage to the subject child’s ability to keep up with his education” (Maurer affirmation in support, exhibit E, petition at 3). With respect to the child’s education, Petitioner alleges in the petition that the child consistently failed to log on or logged on late for his classes, which were held remotely due to the ongoing COVID-19 pandemic, causing him to be marked absent. Petitioner further alleges that the child failed to turn in schoolwork, and failed to attend supplementary tutoring or classes. On August 3, 2021, Respondent filed a cross-petition to modify the visitation schedule set forth in the 2017 Order (V-02260-20/21C & V-02258-20/21C). An amended cross-petition was subsequently filed on August 16, 2022. The cross-petition is currently pending before the court. Respondent now moves to dismiss the modification petition on the grounds that the petition is moot because the child is once again attending school in-person full time. Respondent further argues that the remaining allegations in the petition do not give rise to a change in circumstances, are not specific, and are conclusory in nature without a basis for support, and that Petitioner cannot make the necessary evidentiary showing to meet the necessary burden of proof to require a hearing. Petitioner opposes and argues that there has been a change in circumstances because Respondent has failed to adequately communicate with Petitioner regarding the child’s medical needs and health and because the child has missed classes, failed to turn in homework, and performed poorly in his classes. DISCUSSION “Where a parent seeks to modify a formal custody agreement she has executed, she must show that there has been sufficient change in circumstances since the execution of the agreement, and that modification is in the best interests of the child” (Juliette S. v. Tykym S., 166 AD3d 509, 509 [1st Dept 2018]). To survive a motion to dismiss, a petition seeking to modify a prior order of custody and visitation must contain factual allegations of a change in circumstances warranting modification to ensure the best interests of the child (In re Ronald S. v. Deirdre R., 62 AD3d 593 [1st Dept 2009]; Steinharter v. Steinharter, 11 AD3d 471 [2d Dept 2011]). A parent seeking modification of a prior order of custody based on change of circumstances is not automatically entitled to a hearing regarding the child’s best interests and must first make a sufficient evidentiary showing to warrant a hearing (Ronald S. v. Deirdre R., 62 AD3d 593, 594 [1st Dept 2009]; Matter of Timson v. Timson, 5 AD3d 691, 692 [2d Dept 2004] ["One who seeks to modify an existing order of visitation is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant it"]). “The court entertaining such a petition need not hold a hearing where petitioner has failed to make a showing of changed circumstances” (Tykym, 166 AD3d at 509; Matter of Griffin v. Griffin, 18 AD3d 998, 999 [3d Dept 2005] ["only when such a change in circumstances has been demonstrated may Family Court properly proceed to undertake a best interest analysis"]). Furthermore, “[e]ven if the requisite prima facie showing of changed circumstances is made, the court need not hold a hearing where it possesses sufficient information to make a comprehensive and independent review of the child’s best interests” (id. at 509-510). Here, Petitioner argues primarily that there has been a change in circumstances because the child missed or was tardy to classes and performed poorly in school. “[A] child’s mere poor performance in school is insufficient to qualify as a substantial change in circumstances, [but] such a change may be shown if the school performance is linked to the custody arrangement or one parent’s interaction with the child” (Tavernia v. Bouvia, 12 AD3d 960, 961 [3d Dept 2004] [internal citation omitted]). “A change may also be warranted where a custodial parent places his or her lifestyle choices ahead of the child’s emotional well-being” (id.). In opposition to the motion to dismiss, Petitioner submits her own affidavit, email correspondence with the child’s school, copies of the child’s report cards dated December 8, 2020, March 3, 2022, and copies of the child’s attendance records for the period between September 9, 2021 and March 3, 2022 (Phengthalangsy aff in opp, exhibits A-D). Respondent contends in a reply affidavit that the emails submitted by Petitioner are taken out of context or are incomplete such that they do not accurately reflect his involvement and interaction with the child’s teachers and that Petitioner has also been in contact with the child’s teachers and involved in his schooling. Respondent also states in his affidavit that he has engaged a math tutor for the child and submits emails purportedly sent to the prospective tutor. Upon review of the petition and materials submitted on the motion, it is the determination of this court that even if the allegations in the petition and evidence submitted by Petitioner in support of the petition were accepted as true and accorded every favorable inference, it would not establish that a change in circumstances has occurred that would warrant a hearing regarding the best interests of the child. The overwhelming majority of Petitioner’s allegations and supporting emails relate to remote schooling that occurred in 2020, but the child returned to full time in-person instruction in September 2021. That evidence is therefore irrelevant to the current circumstances and to the child’s current performance in school. Furthermore, while the evidence submitted by Petitioner indicates the child may have performed poorly in some school subjects, this alone is insufficient to qualify as a change in circumstances (Tavernia, 12 AD3d at 961), and she has not alleged facts or submitted evidence that would support a finding that the child’s poor performance is the result of the current custody arrangement or solely of the Respondent’s interaction with the child. On the contrary, the emails submitted by both parties indicate that both parents were included on communications with the child’s teachers and are actively involved in the child’s education. The attendance record for the current school year indicates that the child was in attendance for 89 days, has five excused absences, and four unexcused absences. While four unexcused absences may need to be addressed with the child’s school, it is not so high a number as to constitute a change in circumstances. The remainder of the allegations set forth in the petition are conclusory or otherwise do not allege facts that rise to the level of a substantial change in circumstances. Therefore, the motion is granted to the extent that the petition is dismissed. Finally, the court does not find that sanctions are warranted pursuant to 22 NYCRR §130-1.1 or FCA §438 and that portion of the motion is denied. Accordingly, it is ORDERED that the motion to dismiss is granted in part and to the extent that the petition is dismissed, and denied as to the remainder. This constitutes the order and decision of the court. Dated: April 5, 2022
