The following papers having been read:Notice of Motion, Affidavit, Affirmation, Exhibits Annexed 1Affidavit In Opposition, Affirmation In Opposition 2Memorandum of Law Prepared by the Attorney for the Child 3DECISION AND ORDER Respondent moves by Notice of Motion dated and filed with the Court on August 3, 2018, seeking an Order dismissing the Petition based upon the Petitioner’s failure to set forth a prima facie case that there has been a change in circumstances which warrants a change of custody. Petitioner and the Attorney for the Child oppose the motion.BACKGROUNDThe Petitioner, M.G. (the “Petitioner”), and the Respondent, D.M.W. (the “Respondent”), are the parents of the child, A.B.W., born X X, 200X (the “Child”). Pursuant to an Order Modifying Custody and Visitation, entered October 5, 2017, and signed by the Hon. Felice J. Muraca on November 17, 2017, the parties share joint custody of the Child, with the Respondent having residential custody (the “Order”). The Order was entered upon the consent of both parties as the Petitioner was relocating to Florida in October of 2017.On June 5, 2018, Petitioner filed a Petition for Modification of Order of Custody/Visitation Made by Family Court, seeking to modify the Order (the “Petition”).Respondent now moves for an order dismissing the Petition based upon the Petitioner’s failure to set forth a prima facie case that there has been a change of circumstances which warrants a change of custody. In support of his motion, Respondent argues that the allegations contained in the Petition, which could arguably be construed as a change in circumstances, in fact, did not occur subsequent to the Order. Respondent further argues that the allegations set forth in the Petition on which allegedly occurred after the Order was issued, are ” ‘conclusory unsubstantiated, and nonspecific’, and thus, cannot be considered when determining whether Petitioner has met a prima facie burden with respect to setting forth a change in circumstances which warrants a change of custody.”Petitioner, in opposition to the motion, argues that the Respondent’s affidavit in support of the motion is replete with inaccuracies and falsehoods, and she goes through a recitation of the details in support of her Petition — none of which are dispositive of the instant motion.DECISIONS AND ORDER“An order of custody or visitation may be modified only upon a showing that there has been a subsequent change in circumstances such that modification is required to ensure the best interests of the child” (C.H. v. F.M., 130 AD3d 1028, 1030 [2nd Dept. 2015]; citing Vollkommer v. Vollkomer, 101 AD3d 1108 [2nd Dept. 2012]; Matter of James R.O. v. Cond-Arnold, 99 AD3d 801 [2nd Dept. 2012]; Matter of Aronowich-Culhane v. Fournier, 94 AD3d 1114 [2nd Dept. 2012]; and the best interests of a child are determined only upon a review of the totality of the circumstances (Eschbach v. Eschbach, 56 NY2d 167, 171 (1982).The instant motion is tantamount to a motion to dismiss pursuant to C.P.L.R. §3211(a)(7), based upon a failure to state a cause of action. In deciding a motion to dismiss a petition for failure to establish a prima facie case, the Court must assume that the facts alleged in the petition are true, and the allegations must be liberally construed in the moving party’s favor (Smith v. Howard, 113 AD3d 781 [2nd Dept. 2014]), and in doing so, the Court must determine whether the facts alleged fit within any cognizable legal theory (Kempf v. Magida, 37 AD3d 763 [2nd Dept. 2007]).Furthermore, the Family Court, like the civil courts, “may freely consider affidavits submitted by the [petitioner] to remedy any defects in the [petition],” since the dispositive inquiry is ” ‘ whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one’ ” (Leon v. Martinez, 84 NY2d 83, 99 [1994], quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977].; see also Matter of Pamela N. V. Neil N., 93 AD3d 1107, 1108 [3rd Dept. 2012]).Here, affording the Petition the most liberal construction, accepting the allegations contained therein as true, and granting the Petitioner the benefit of every favorable inference to the allegations contained in the instant Petition and in the Petitioner’s affidavit, the Court finds there exists a change in circumstances, to wit: she has relocated back to New York to be closer to the Child; the Child’s academic performance has declined; and, though not dispositive, the desire of the Child to reside with the Petitioner (see Matter of Burch v. Willard, 57 AD3d 1272, 1273 [3rd Dept. 2008]).Therefore, having established a cause of action which warrants a hearing, the Respondent’s Motion to Dismiss is DENIED, without prejudice to renew at the time of a hearing.Accordingly, it is herebyORDERED, that the Respondent’s Motion (Motion Sequence 001), filed under Docket Number V-03410-09/18D is DENIED, with leave to renew at the time of a hearing; and it is furtherORDERED, that the parties and their respective counsel, as well as the Attorney for the Child, shall appear before this Court on October 24, 2018 at 9:00 am for Conference.This constitutes the Decision and Order of this 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 DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.ENTER:Dated: October 15, 2018Check applicable box:Order mailed on [specify date(s) and to whom mailed:Order received in court on [specify date(s) and to whom given]
