Appeal from an order of the Family Court of Chenango County (Sullivan, J.), entered November 9, 2012, which, among other things, granted petitioner’s application, in proceeding No. 1 pursuant to Family Ct Act article 6, to modify a prior order of visitation.
Renee M. Moore (hereinafter the mother) and Stephen Palmatier (hereinafter the father) are the unmarried parents of
Following an initial appearance by the parties, the father moved for Family Court’s recusal, which was denied by the court at the next appearance of the parties. Thereafter, the court issued an order, without holding a fact-finding hearing, maintaining physical custody of the child with the mother and eliminating the father’s weekday visitation. The court also granted the father additional weekend visitation time, expanded summer visitation, as well as shared school breaks and alternating Thanksgiving and Christmas holidays. The father appeals.
Initially, inasmuch as there was no showing of a statutory disqualification or of personal bias, Family Court did not abuse its discretion in denying the father’s recusal motion (see People v Moreno, 70 NY2d 403, 405 [1987]). We do find, however, that Family Court erred in modifying the prior order without first conducting a fact-finding hearing. “[A]n existing visitation order will be modified only if the applicant demonstrates a change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child” (Matter of Taylor v Fry, 63 AD3d 1217, 1218 [2009]; accord Matter of Burrell v Burrell, 101 AD3d 1193, 1194 [2012]). While not every petition in a Family Ct Act article 6 proceeding is entitled to a hearing, one “is generally necessary to determine the best interest[s] of the child unless there is enough information before the court to conduct an independent review” (Matter of Howard v Barber, 47 AD3d 1154, 1155 [2008]; see Matter of Anthony MM. v Rena LL., 34 AD3d 1171, 1172 [2006], lv denied 8 NY3d 805 [2007]). Here, the mother alleges in her petition that the father opposes the child attending the two preschool programs, which the mother “strongly feel[s] he needs.” In our view, while the mother set forth sufficient facts that, if established at an ev
Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Chenango County for further proceedings not inconsistent with this Court’s decision and, pending said proceedings, the terms of the November 9, 2012 order shall remain in effect as a temporary order.