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Petitions to Modify Child Custody in New York: How to Establish Circumstances Justifying a Change in Custody

New York Custody Modification Petitions.

New York child custody lawyer Marc Rapaport has more than twenty-five years of experience.  He is fully familiar with how judges in New York apply and interpret the custody modification standards set forth in New York’s Domestic Relations Law (DRL).  This article describes how New York courts (including the Family Court and Supreme Court) approach petitions to modify custody, and the legally-mandated factors New York judges apply in deciding custody modification requests.

Where circumstances have changed since a child custody order was last entered, a parent may file a petition to modify custody.  Custody modification petitions are usually filed in the Family Court located in the County where the child resides at the time the petition is filed.

The Threshold: The Petitioner Must Show a Change in Custody is Needed to Protect A Child’s Best Interests.

A parent seeking an order modifying custody must first establish that modification of the prior custody order is necessary to ensure the child’s “continued best interest.”  A parent seeking to modify an existing custody arrangement is not automatically entitled to a hearing. In 2020, the Nassau County Family Court (Hon. Conrad D. Singer), in the case D.D. v. R.M., described the petitioner’s threshold standard as follows:

A parent seeking to modify an existing custody arrangement is not automatically entitled to a hearing. Rather, “he or she must make an evidentiary showing of a change in circumstances demonstrating a need for a change in custody in order to insure the child’s best interests.

Custody Modifications: The Best Interests Standard.

As with initial custody determinations, courts decide custody modification petitions based on the child’s best interest and in promotion of the child’s health and happiness. Domestic Relations Law § 70[a].  In a decision issued on January 13, 2020 in the case Matter of I.D. v. L.Z.., Judge Ariel D. Chesler of the Bronx County Family Court held that a parent seeking to modify an existing custody arrangement is not automatically entitled to a hearing. Rather, he or she must make an evidentiary showing of a change in circumstances demonstrating a need for a change in custody in order to insure the child’s best interests.  In his decision, Judge Chesler summarized the custody modification factors as follows:

  • Ages of the Children;
  • Financial Circumstances of the Parties;
  • Home Environment of Each Parent;
  • Preferences of the Children; and
  • Length of Time of any Prior Custodial Arrangement.

The expressed wishes of the child are particularly significant in cases where the child is older (12 years of age or older) and more mature. The court will also consider whether the custodial parent has made the child available for visitation and fostering open communication between the child and the noncustodial parent. Courts also consider the need of the child to live with siblings.

Recent Examples of How Judges Have Applied the Best Interests Standards in Custody Modification Cases

  1. Modifying Custody Will Promote Stability.

    In many instances, the party seeking a court order modifying child custody has lived with the child for an extended period of time, notwithstanding that a prior order may have granted custody to the other parent.  In these situations, changing the prior custody order may promote stability in the child’s life.  In essence, the court is being asked to modify the prior custody order because the prior order no longer reflects the current arrangements.
    In the case, Matter of I.D. v. L.Z., Judge Chesler held that a change in custody was warranted, and granted custody to the father because the child had already lived with the father for the past 4 years, even though the mother had been granted custody in the initial order.  According to the Judge, the child’s “home and daily life has been with his father for a significant period of time.  Therefore, the factor of stability weighs in favor of granting the father custody.”

  2. Modifying Custody of Teenagers who Wish to Reside with their Father, Who Has Greater Financial Resources than Mother.

    In another recent decision, issued on May 19, 2021, in the case V.L. v. D.L., Judge Sunshine of the Supreme Court in Brooklyn ruled in favor of the father, who brought a custody modification proceeding seeking residential custody of the parties’ two teenage children. The father provided testimony showing that he provided a far more luxurious residential environment than the mother was able to provide.  The Court appointed an attorney to represent the children.  According to the decision, the children’s attorney testified that the children “enjoy spending time with their Father more than their Mother and given their ages and levels of maturity, the Children’s feelings should be given great weight[.]”  The Court granted the Husband’s petition.

  3. Because of Acrimony Between Parents, Joint Custody is No Longer in the Child’s Best Interests.

    In the case Matter of Kopciowski v. Kopciowski, 2021 NY Slip Op 03750 (App. Div. 4th Dept.), the mother requested that the court modify the parties’ arrangement from joint to sole custody.  She asserted that her relationship with the former husband had become so strained and acrimonious that communications between them had become impossible.  In a decision issued on June 11, 2021, the appellate court (New York’s Appellate Division for the Fourth Department ) held that the mother met her burden of establishing a change of circumstances and upheld the Family Court’s order awarding the mother sole custody.

NEW YORK CHILD CUSTODY ATTORNEY

New York Custody attorney Marc Rapaport has handled child custody cases in New York since 1995. He has handled virtually all of the issues arising in custody matters.  He represents parents in custody matters in Supreme Court, Family Court, and in appellate matters.  Questions? Call Rapaport Law Firm at (212) 382-1600.

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