The following papers were read on this motion: NOTICE OF MOTION/SUPPORTING PAPERS 1 AFFIDAVIT IN OPPOSITION AND CROSS-MOTION 2 AFFIRMATION OF AFC 3 AFFIRMATION IN REPLY 4 DECISION AND ORDER ON MOTION The Petitioner Mother __ (hereinafter “Mother”) having filed a Petition for Violation of Court Order dated December 28, 2023 (hereinafter the “Petition”); and the Respondent Father __ (hereinafter “Father”) having moved by notice of motion for an order dismissing the Petition for failure to state a cause of action and for an award of costs and reasonable counsel fees; and the Mother having opposed and cross-moved for an order dismissing the motion to dismiss and dismissing the request for costs and counsel fees1; and the Attorney for the Child __, Esq. (hereinafter “AFC”) having joined in the motion to dismiss; and Father having replied; and the court having considered the motion and the arguments in support thereof; the motion is determined as follows: PROCEDURAL HISTORY The parties were never married, and are parents to the subject child __ (DOB: 3/3/2011). On May 20, 2020 the parties entered into a Final Order Modifying Order of Custody and Parenting Time (Mejias, J.) on consent (hereinafter the “2020 FOCV”). Pursuant thereto, the parties share joint legal custody of the child with the Father having residential custody. With respect to the parameters of the joint legal custody arrangement, the 2020 FOCV directs that “the parties shall consult with one another concerning all major matters concerning the health, education and general welfare of the Child, but if the parties should disagree as to a decision affecting the Child, the Father shall have the final decision-making authority”, and that “both the Father and Mother are entitled to access all medical, health, school, dental and other records pertaining to the Child and this Order shall serve as an authorization fo such access.” The Mother filed a petition seeking modification of the 2020 FOCV dated October 25, 2023 (Docket No. V-09901-19/23E, hereinafter the “23E” petition). The Father then filed both a petition seeking enforcement of the 2020 FOCV (Docket No. V-09901-19/23F, hereinafter the “23F” petition) and a petition seeking modification of the 2020 FOCV (Docket No. V-09901-19/23G, hereinafter the “23G” petition) which were both filed by Order to Show Cause dated November 21, 2023. The Mother then filed the instant Petition on January 3, 2024. On April 2, 2024, the parties appeared in Court and the Mother’s opposing papers requesting that the Father’s 23F and 23G petitions be dismissed for failure to serve pursuant to the directives of the Order to Show Cause was granted. In addition, the Father’s unopposed motion to dismiss the Mother’s 23E petition was granted. The Father’s counsel then served the instant motion and a briefing schedule was entered into on the record. The motion was deemed fully submitted on April 22, 2024. DISCUSSION The Courts have consistently held that “[w]here parents enter into an agreement concerning custody ‘it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the [child]‘” (Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 938-939 [2d Dept. 2006], quoting Smoczkiewicz v. Smoczkiewicz, 2 A.D.3d 705, 706 [2d Dept. 2003]). The filing of a petition for relief pursuant to Article 6 of the Family Court Act does not confer an absolute right to a hearing, however “where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required” (Trazzera v. Trazzera, 199 A.D.3d 855, 858 [2d Dept 2021]). Conversely, “[c]onclusory and nonspecific allegations relating to a change in circumstances are insufficient to justify a hearing on the issue of whether a change in custody would be in the best interests of the child” (Matter of Chichra v. Chichra, 148 A.D.3d 883, 884 [2d Dept 2017]). A hearing is properly denied where the petition fails to demonstrate that there was a factual dispute requiring the Family Court to conduct a hearing before deciding a motion for dismissal (see, O’Hanlon v. Cornelius, 213 A.D.2d 406 [2d Dept 1995]). Here neither the Petition itself, nor the supporting affidavit set forth sufficient factual allegations requiring a hearing. The papers submitted by the Mother consist almost entirely of conclusory statements, claims predicated upon hearsay and wholly lacking in specificity, and also, claims pertaining to actions or inactions of third parties that are beyond the control of the Father. Specifically, the Mother makes a series of allegations pertaining to the child’s current mental health therapy, the paperwork the Father supposedly filled out to enroll the child, and the Father’s choosing a “self-pay” option in lieu of utilizing the Mother’s insurance coverage. The Mother has not attached any of the paperwork to which she refers, nor has she cited to any provision of the 2020 FOCV that requires any specific payment method for the child’s medical treatment or that requires the Father to provide any information pertaining to same directly to the Mother. Rather, the terms of the 2020 FOCV provide for the Mother’s direct access to providers for information. Whether those providers release information to the Mother is beyond the Father’s control. Thus, no actual violation of the 2020 FOCV has been alleged. Moreover, the Mother conceded on the record that, at present, she has been provided all of the information that was sought from the child’s current therapist such that her claims in that regard are rendered academic in any event. The Mother further claims that the Father failed to provide the child’s school with a copy of the 2020 FOCV, though he was not required to do so, and that the school has failed to contact her directly which is a matter beyond the control of the Father. Her claims regarding the Father’s interactions with school personnel are without basis in fact and devoid of specificity and evidentiary support. It is axiomatic that “[a]ny court in considering questions of child custody must make every effort to determine ‘what is for the best interest of the child, and what will best promote its welfare and happiness’” (Eschbach v. Eschbach, 56 N.Y.2d 167 [1982][internal citations omitted]). “While a child’s expressed preference is not determinative, it is some indication of what is in the child’s best interests” (Ramsey v. Faustin, 213 A.D.3d 942 [2d Dept 2023]). The court notes that, while not dispositive of the legal inquiry before the court on the instant motion, the child’s position as set forth by the AFC is significant and supports a dismissal of the instant Petition. The parties would be best served to be mindful of the child’s position regarding the matters before the court and to guide themselves accordingly in her best interest. As she has failed to sufficiently allege any violation of the 2020 FOCV or to demonstrate an entitlement to a hearing, the Mother’s Petition must be dismissed. With respect to the branch of the motion which sought an award of costs and reasonable counsel fees, that relief is not referred to anywhere in the supporting affirmation. Therefore, inasmuch as that prayer for relief is wholly unsupported by the moving papers, same must be denied. Accordingly, it is hereby: ORDERED that the motion is hereby GRANTED to the extent that the petition filed under Docket Number V-09901-19/24H is hereby DISMISSED. The motion is, in all other respects, denied; and it is further ORDERED, that any relief sought in the Petitioner’s cross-motion is hereby denied as academic. The trial dates previously scheduled for May 6, 2024 and May 7, 2024 are hereby vacated. This constitutes the decision and order of the court. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. Dated: April 25, 2024
