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Modifying Child Custody Orders

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Child custody modification petitions are almost as common as initial petitions. Over time, things tend to change for a variety of reasons. A lot of times, people establish custody when the children are relatively young. Then, as the children age or different circumstances happen, they need to modify custody or visitation. Unfortunately, some people can never solve their initial conflicts. They just fester over time and one parent or the other petitions for sole custody.

Factors Must Be Considered In Order for the Court to Grant A Modification to a Child Custody Order in New York

The first factor the court needs to consider is whether there has been a change of circumstances since the last order was set. The second factor the petition needs to state is why the requested change is in the best interests of the child or children. The issue will be how they go about presenting the evidence that would match up to the best interests of the children.  The other sub-factors include:

  1. the original placement of the child,
  2. the length of that placement,
  3. the child’s desires,
  4. the relative fitness of the parents,
  5. the quality of the home environment,
  6. the parental guidance given to the child,
  7. the parent’s financial status,
  8. his or her ability to provide for the child’s emotional and intellectual development, and
  9. the willingness of the parent to assure meaningful contact between the child and the other parent.

David Bliven

How Is A Substantial Change Of Circumstances Affecting The Welfare Of The Child Defined Under New York State Law?

The statute does not define a substantial change of circumstances or what constitutes “best interests.” Instead, it is very much case law driven and it goes back to the original custody determination factors (https://www.blivenlaw.net/child-custody/). Among other things, the court is going to look at why you are petitioning for a change. Maybe one parent is moving far away, such that it would affect the other parent’s access time. Perhaps one parent has withheld access from the other parent or has not properly cared for the children. It goes back to all of the same factors that are considered in an original custody determination and adds which factors have now changed.

What Is The Best Interest Of The Child When Considering A Modification Of Child Custody Petition In New York?

The best interest of the child or children is not statutorily driven; it is case law driven and the consideration is based on the custody factors. Among those custody factors is the age and preferences of the children, whether there is the existence of child abuse or neglect, whether there is interference with the relationship of either parent, the quality of housing, and the financial circumstances of each parent. One major factor is willingness to encourage a relationship with the other parent. One aspect of that is withholding access; another aspect is the non-custodial parent speaking badly about the custodial parent to the children. Perhaps that needs to be considered by the court in restricting some kind of access with the non-custodial parent, if they do not stop such behavior.

Process to Petition for a Modification to a Child Custody Order

In Family Court, you would file a petition with the court1. In Supreme Court, you would file an order to show cause, which is a type of motion or application that usually needs to be drafted by an attorney. The court can help you draft it, if you are representing yourself, but it is usually advisable to go through an attorney. Some attorneys, especially post-pandemic, offer to help draft applications for potential clients just to get them into court, without necessarily taking on the retainer (perhaps for a reduced fee).

How Long Does It Take For A Decision To Be Made On A Petition To Modify Child Custody In New York?

The amount of time it takes for a modification decision varies with each case. You could have a determination made on the first day of court. Other cases become contested such that a hearing or trial is necessitated. It depends on what exactly is being tried. A full-blown custody case in the greater New York City area can last a year or more, but only about 5% of cases go through to a full trial. At some point, there is a resolution reached in the vast majority of modification cases.

Will Supreme Court Or Family Court Hear The Petition To Modify A Custody Order?

If the original order was created in Supreme Court pursuant to a divorce filing, then the parties usually have the option of either going back to Supreme Court or filing in Family Court for the custody modification. If the custody or visitation is the only issue you are bringing back to court, you are probably better off going to Family Court than to Supreme Court. But if there are intertwined issues of custody and visitation and also child support and property distributions, the parties are better proceeding in Supreme Court.

How Does The Petitioning Party Prove A Substantial Change Of Circumstances When Requesting A Modification To A Child Custody Order In New York?

A change of circumstances is proven in a similar way that the original custody determination would be proven: with evidence. Especially in high conflict situations: keep a very careful paper trail!

If the non-custodial parent is deprived visitation, they need to keep a paper trail of the missed or cancelled visits. I recommend creating evidence through emails or text messages with the other parent, documenting every time your visitation was denied. The other parent may ignore that correspondence but it will seem relatively unbelievable to a Judge that the person is never getting any of your text messages or emails.  One can also use programs such as “Our Family Wizard”1 or “2 Houses”1 to document communications with the other parent (indeed, such programs are often better at organizing such communications than mere text/e-mail chains).

You should also capture your understanding of important discussions or exchange of documents.  The e-mails should confirm the substance of any conversation you had with the other parent, or your attempts to contact him/her regarding visits (including confirming any messages left for him/her).  The email should request that s/he respond, and specifically request that “if anything I have stated in this letter is incorrect, please return correspondence.”

You should minimize your utilization of relatives/babysitters to care for the child.  It will ultimately look bad to the Judge if, on even some of your access time, your child is spending a significant amount of time away from you.  The access time is meant to be quality time shared between you and the child.

Furthermore, log into the journal all contacts with your child, all negative contacts with the other parent, as well as contacts with the child’s school, doctors, etc.  Also, start thinking of any family members, teachers, clergy, etc. who would make good witnesses for trial.

If an emergency arises and/or you wish to file an application to advance the court date (based on an urgent need), then you have the ability to file an order to show cause.  Bear in mind it’s in the discretion of the court to determine whether a genuine emergency/urgency exists.  To file an order to show cause, you’ll need to schedule an appointment with your attorney to complete an affidavit which must accompany same.

You’re should review your Facebook, Twitter, e-mail, or other social networking pages you may keep on the internet for content which may portray you in a bad light.  As an example, don’t post pictures of you out partying at 6 a.m.  You generally have a duty to preserve evidence, which includes electronically stored information, and therefore you should not erase or delete such evidence even if you think it’s harmful.  Instead, you should bring it to the attention of your attorney as you can discuss with him/her what, if anything, should be done.

To the degree the other parent harasses, threatens, intimidates or otherwise relates inappropriate comments to you, then start taping all phone conversations with him/her, including any messages left for you.  You may use the “voice recorder” or “voice memo” app on your cell phone for this purpose (or a hand-held recorder).  You should refrain, however, from taping any of the child’s conversations.

Additionally, if you are aware of, or suspect, that the other parent, or someone largely responsible for the child’s care has abused or neglected the child, or that the child is in imminent danger of being abused or neglected, you should (at the least) contact your attorney immediately.  You should also, under such circumstances, consider contacting the police and/or the Statewide Central Register of Suspected Child Maltreatment (800-342-3720).  Prior to contacting the police and/or Statewide Central Register, however, you should generally speak with your attorney first about the situation (unless the child’s life is in imminent danger).  Besides physical or sexual abuse, child neglect may consist of the following types of conduct (and may also address present circumstances and/or such conduct in the recent past): excessive corporal punishment, persistent and/or serious acts of domestic violence, repeated drug/alcohol abuse, mental illness, leaving young children unattended or without adequate guardianship and/or not providing a child with adequate food, shelter, clothing, education or medical care.

I also recommend keeping an event timeline – see Appendix A for an example.

What Evidence Can A Parent Provide To Challenge The Petition To Modify A Custody Order?

If a parent alleges there is abuse or neglect going on, for example, then they have to show actual evidence of same. For example, a doctor may make a report of abuse or neglect. Children can also make disclosures to teachers, guidance counselors, or therapists and you can bring that into the case as evidence.

Evidence can also take the form of testimony – both of the parties & witnesses.  One can seek to present videos, audios, e-mails/texts/social media post, pictures as well as experts and rebuttal witnesses.

Is It Always Necessary To Have A Family Law Attorney Experienced In Handling Custody Modifications To Handle My Case?

While an attorney is not always necessary, it is almost always beneficial. One could, in theory, handle their own case but, as the old adage says, one who represents himself has a fool for a client. If the other side has an attorney, you definitely want an attorney on your side. In New York State, if you cannot afford an attorney, you would qualify for court-assigned counsel. There is almost no excuse to be unrepresented on such an important issue. Ultimately, if you are assigned an attorney that you are not pleased with, you’re always free to go out and hire your own attorney.

David Bliven

About David Bliven

David Bliven is a solo practitioner with offices in White Plains & Riverdale. He has been practicing exclusively Divorce & family law for 25 years.

Mr Bliven has an “AV” rating from Martindale-Hubbell (the highest possible rating in both Legal Ability & Ethical Standards), a perfect 10.0 rating from Avvo (“Superb” rating) and is listed in the “Super Lawyers” directory by Thompson Reuters (a distinction given to less than 5% of all attorneys in each field of practice).  He is also a Certified Financial Litigator by the American Academy of Certified Financial Litigators – which is particularly helpful in high net worth divorces & support cases.  Mr Bliven has also authored the books “Navigating Your New York Divorce Case,” “Navigating Your New York Family Court Case,” “Navigating Your New York High Net Worth Divorce” and “Navigating Your New York Post Divorce Case: Modifications & Enforcement.”

Furthermore, he has been published at such periodicals as Nolo.com, New York Law Journal and Westchester Lawyer, as well as Westchester Magazine.  Finally, he was honored as one of 2019’s “New York’s Leaders in the Law” by New York Magazine.  He was also honored as a “Super Lawyer” for the New York Metro & Westchester area by Westchester Magazine, October, 2019.

His Family Law blog may be found at: https://www.blivenlaw.net/blog/

[1] The form for a Custody/Visitation Modification Petition is here: https://www.nycourts.gov/LegacyPDFS/FORMS/familycourt/pdfs/gf-40.pdf.

[2] https://www.ourfamilywizard.com/.

[3] https://www.2houses.com/en/.

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