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Under What Circumstances Might I Petition To Modify A Custody Order?


Sometimes after a court issues a custody order, things change. “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. Suzane 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 occurs when a schedule must be adjusted for a child about to enter school. (Ehrenreich v. Lynk, 74 A.D.3d 1387 [3rd Dept. 2010]). Another 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 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]).

Why Should Someone Seek Counsel Of An Experienced Family Law Attorney In Custody Matters?

It is possible to see the law on custody as extremely simple and therefore tempting to save legal fees. After all, with a few exceptions, custody law turns on the best interest of the child. And who is more familiar with the child and what is in his or her best interests than a parent? But one should never forget these cases are decided in a court. A court has procedural rules, and a court only allows one to present evidence in a legally admissible form. It can be devastating to one’s case to be unable to prove a fact because the evidence is in an inadmissible form. It is not the truth that wins and loses lawsuits; it is the truth one can prove. Further, organizing the proof so that it will be heard by a busy judge in a persuasive manner is again often the difference between winning and losing.

Consider how hard it is to follow any story that is told in a confusing manner. Remember the judge does not know your family’s history. You have to tell that history, and you have to tell the judge what in your family’s history will allow that judge, going forward, to have confidence the decision you want the judge to reach will be in the child’s best interest. You do not have unlimited time. A skilled lawyer will present admissible evidence in an organized way to persuade a judge. The difference between winning and losing is often that simple, and people who do not make these presentations regularly, often do so on this one very fateful day poorly.

For more information on Modifying A Custody Order In New York, 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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