Final orders of custody in New York courts are always based on the children’s best interest. Once a final order is in place, whether because the parties reached an agreement or the Judge decided after a hearing, courts are reluctant to modify these orders. Inevitably, the time may come when one party wants to change the order. Changing an order of custody is not as simple as it seems. In New York, there is a two-pronged test. Anyone who wishes to change an order of custody has the burden of proving a substantial or significant change in circumstance and that modification of a prior order is in the child’s best interest.
Where the family dynamic has changed significantly after the entry of a custody order, the court may find a substantial change in circumstances warranting a modification in the custodial arrangement. In determining whether such a change exists, the court’s consider several factors, that together, forms the basis to modify custody. Those factors include but are not limited to the quality of the home environment, parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the ability of each parent to financially provide for the child, the relative fitness of each parent, and the effect any modification may have on the child’s relationship with the other parent. The ultimate concern for the court is the child’s best interest and deciding which custodial arrangement provides stability and continuity for the children and ensure the child’s relationship with the other parent and or siblings.
Children deserve to have a relationship with both parents, and It is incumbent upon parents to promote a healthy relationship between the child and the other parent. Before filing a petition to modify custody you should be able to articulate the specific facts that lead to the decision to request a change in the current parental access. These facts are what you would allege in any modification petition filed. For example, it would not be enough to allege that your child does not want to see the other parent. While courts will consider the children’s wishes, especially as they get older, their wishes are not a controlling factor. If your child is insistent, then perhaps trying to understand the reason behind the refusal to see their parent, would be helpful in this process. In order to get a clear picture of what is happening, you may have to think creatively so that you are not accused of trying to influence the child in one direction or another. Seeking the assistance of a professional such as a therapist, a neutral third party, is one way to ascertain what is causing the child’s reluctance to spend time with their parent. You should also think about your own observations of the child and the other parent, any difficulties you may have experienced in communicating with the other parent, and specific instances of emotional, mental, or physical harm experienced by your child.
Once you file a modification petition, the burden is on you to prove what you have alleged by a preponderance of the evidence, more likely than not, that the facts alleged occurred. The evidence must be competent, material, and relevant. The biggest challenge in modification cases are the requirements under the law as to when the children’s statements are permissible. The court will not permit children’s out of court statements in a hearing for modification. A parent cannot repeat what a child has stated to them. The Court may allow the child’s attorney to question the child in the privacy of the Judge’s chambers without either parent present. The record of this proceeding is permanently sealed for the protection of the child. There is one exception and that is when the children’s statements rise to the level of child neglect or abuse and for which there is corroboration. Given the nuances to filing for a custody modification and proving the petition, it is highly recommended that you obtain the services of an attorney to assist you with this process and represent you in court.
This is not intended to be legal advice. Speak with an attorney regarding your specific situation.
Anastasia Rivera-Bonilla is senior counsel concentrating in matrimonial and family law. She can be reached at 845-764-9656 and by email.