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Divorce Law

Petitions to Change Custody or Visitation: New York’s Two-Step Modification Procedure

New York legal standard for modifying a custody order

In New York, the Family or Supreme Court may order custody or visitation until a child reaches 18 years of age. Sometimes, a parent files a petition asking for a change in custody or visitation. This is called a modification proceeding. There are a variety of reasons why a parent may seek a change of custody. On occasion, parents who previously agreed upon joint custody find that they profoundly disagree about basic matters, such as education, religion or medical treatment. In other instances, the child’s best interests are not being adequately served by the current custody arrangement. If you believe that custody or visitation arrangements for your child need to be changed, or if you are faced with a custody modification petition, New York child custody lawyer Marc Rapaport has the experience and knowledge of family law to provide you with effective legal representation. Over the last 23 years, Marc has handled custody proceedings and child visitation cases throughout New York and New Jersey.

The First Step: Establishing a Change of Circumstances

In order for a New York court to consider a request for a change in custody or visitation, the party requesting modification must first demonstrate to the court that there has been a change in circumstances warranting a trial. This threshold requirement serves to weed out cases in which a disgruntled party merely seeks to harass the other parent and/or unnecessarily require the custodial parent to devote considerable time, money and emotional anguish. Therefore, "[a] parent who seeks change of custody must make some evidentiary showing to warrant a hearing; it is not automatically granted." Patricia C. v. Bruce L., 46 A.D.3d 399, 848 N.Y.S.2d 102 (1st Dept. 2007) (citing David W. v. Julia W., 158 A.D.2d 1, 6-7, 557 N.Y.S.2d 314, 318 (1st Dept. 1990). If the party applying for a modification does not establish a sufficient change of circumstances, the petition is dismissed.

New York courts will generally find that where parents who previously agreed upon joint custody are unable to effectively communicate or cooperate, there exists a requisite change in circumstances to justify a modification hearing. Demers v. McLear, 2015 WL 4276464 (NY App. Div. 3rd Dept. 2015).

The Second Step: Determining Best Interests

Once a court has found that a change in circumstances has occurred, the court proceeds to a second stage of the analysis, to wit: an evidentiary hearing as to which changes in custody or visitation are needed to best serve a child’s best interests. Under New York law, a best interests determination requires a consideration of several factors, including:

Experienced Legal Guidance:

Proceedings to modify court orders involving custody and visitation arrangements can be very complicated. If you or your (ex) spouse resides in NYC or the surrounding area, call on family law and divorce attorney Marc Rapaport for help. His experience in and legal knowledge about these matters and the processes involved can make the legal difference for your case. Call Marc’s law office to arrange a consultation (212) 382-1600.


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