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Under What Circumstances Can Custody And Visitation Orders Be Changed?


“The party petitioning to modify a custody order bears the burden of demonstrating first, that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order.” (David ZZ v. Suzanne A., 152 A.D.3d 880 [3rd Dept. 2017] quoting (Matter of Smith v. McMiller, 149 AD3d 1186, 1187 [3rd Dept. 2017]).

There is thus a two part test. First, the party seeking to change the order must show that some relevant circumstance has changed since the prior order. In Michael YY v. Michell ZZ, (149 A.D.3d 1284 [3rd Dept. 2017]), a parent’s release from jail was not sufficient to change custody. Second, the party seeking to change the order must show the child’s best interest requires a modification.

Other courts phase the test slightly differently. Modification of an existing custody order is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the child. (Maxwell v. Watt, 152 A.D.3d 693 [2nd Dept. 2017]). While there is little substantive difference in the formulation of the standard, this formulation really collapses the two parts into one part.

Courts are also more willing to modify a custody order that was reached by stipulation than one reached after a full trial. (Tracey L. v. Corey M., 151 A.D.3d 1209 [3rd Dept. 2017]).

A common change in circumstances that the courts have found to be sufficient to change a custody order is the domestic violence in a parent’s home. (William EE v. Christy FF., 151 A.D.3d 1196 [3rd Dept. 2017]).

Frequent violations of the order, unilateral changes in the times of parenting time, and not providing information about the child have justified a change in custody. (Dorsey v. De’Loache, 150 A.D.3d 1420 [3rd Dept. 2017]; Crystal F. V. Ian G., 145 A.D.3d 1379 [3rd Dept. 2016] mother interfered with father’s parenting time; father harassed mother).

A serious deterioration in the relationship between the parents has deteriorated to the point where they simply cannot work together in a cooperative fashion for the good of their child[ ]. (Matter of Gerber v. Gerber, 133 AD3d 1133, 1136 [2015] [internal quotation marks and citations omitted], lv denied 27 NY3d 902 [3rd Dept. 2016]; Smith v. McMiller, 149 A.D.3d 1186 [3rd Dept. 2017]). Courts have ended joint custody when the parents cannot get along and communicate. (Emanuel SS v. Thera SS., 152 A.D.3d 900 [3rd Dept. 2017]).

Threats and harassment, along with a lack of communication, have supported a change in custody. (Cameron ZZ. v. Ashton B., 148 A.D.3d 1234 [3rd Dept. 2017]).

In Andrea C. v. David B., (146 A.D.3d 1104 [3rd Dept. 2017], the court found the parents had irreconcilable parenting philosophies. The court also noted that the father opposed and disrupted attempts to provide services for the child. The court upheld a grant of sole legal and physical custody to the mother.

One argument in favor of maintaining the prior order is the desire for stability in a child’s life.

The decision to move from homeschooling to a traditional educational program has been sufficient to modify a custodial order. (Williams v. Williams, 151 A.D.3d 1307 [3rd Dept. 2017]).

If An Asset Was Omitted In A Divorce, Can The Decree Be Modified?

In Porter v. Porter, (137 A.D.3d 992 [2nd Dept. 2016]), the husband sought to modify the judgment of divorce because the wife did not list the household furnishings in her disclosure. The court wrote: “The defendant’s failure to list such furnishings on her net worth statement does not constitute fraud or misrepresentation sufficient to entitle the plaintiff to vacate the judgment of divorce.” One suspects the husband knew about the furnishings despite the lack of disclosure. A different result might have followed had the undisclosed asset been an account the other spouse would have had no reason to know about.

Does The Same Judge Who Handled The Decree Have To Handle The Modification As Well?

Generally, the answer is yes.

For more information on Changing Custody & Visitation Orders, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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