Modifying Custody Orders and Agreements in New York

You worked hard to create the best custody agreement that worked for your and your children. But children get older and circumstances change. A parent may receive a job offer in another state that would require them to move. Perhaps the original custody agreement was signed your child was in kindergarten but now they are ready to attend high school and want to go to a specialized school. Maybe your child developed a disability that requires special attention or the other parent began abusing drugs and alcohol, or worse, your child. These are all circumstances that would require reconsidering the original custody order and the need to modify the agreement. Court intervention is often needed to accomplish this goal.

How to Modify a Custody Order or Agreement

Custody orders can always be modified by filing a petition in New York Family Court. If the original custody order was entered as part of a divorce, a parent can file motion to modify the custody order in Supreme Court.

Once a petition is filed in Family Court, the Family Court will docket your case and schedule an appearance. A motion to modify custody in Supreme Court can be filed under your previous divorce action. It is generally done by Order to Show Cause.

What is Needed to Modify a Custody Agreement and Order?

The parent seeking to modify a custody or visitation order has the burden of showing that a significant change in circumstances has occurred since the entry of the last order warranting a modification.

The proposed modification also needs to be done in the best interest of the child. This is the same best interest standard used in the original custody petition, pendente lite order, and temporary custody matter. Courts will perform a careful analysis of all the circumstances, including maintaining stability for the child, the child's wishes, the home environment with each parent, each parent's past performance and relative fitness, each parent's ability to guide and provide for the child's overall well-being and the willingness of each to foster a positive relationship between the child and the other parent.

Change in Circumstances is Not Defined by the Law

The law only requires that there be a sufficient or significant change in circumstances, but it does not define what this means. Significant in one situation might not be significant in another. .

Courts have found significant change circumstances where:

• A mother repeatedly violated the Order by failing to make decisions jointly with the father, failing to allow overnights when mandated, and failing to allow the father to exercise his parenting time by inserting herself into the visits to breastfeed the child.

• A mother refused to consent to the children receiving vaccinations recommended by their pediatricians, leading the youngest child to be prohibited from attending school.

• A mother exercised poor judgment, made unsubstantiated claims of abuse, and refused to return to New York in violation of the parties' settlement agreement until compelled to do so by the court.

• The father was convicted of assault and incarcerated for four months.

Courts will not find a change in circumstance where the allegations in the petition or motion are conclusory and unsubstantiated. Courts have declined to find a change in circumstances where:

• The father failed to obtain information about the children's education and where the mother took appropriate steps to address the children's learning disabilities by working with the school and obtaining appropriate services.

• There was no evidence that the children's poor school performance was due to the custodial arrangement or failings of the mother.

• A father made a motion only two weeks after the issuance of the judgment of divorce which incorporated the terms of the parties' separation agreement.

Every case is different and experienced lawyers like Daniel Szalkiewicz and Cali Madia can help modify your custody order to fit your circumstances.

Using Technology to Show a Change in Circumstances

A party seeking to modify a custody agreement is not automatically entitled to a hearing absent some evidentiary showing of changed circumstance. We use subpoenas and technology to show a changed circumstances, such as subpoenaing Facebook IP addresses or other information, using Apple location data to show where the other parent is, and other internet based measures.

Cali Madia and Daniel Szalkiewicz Can Help with Your Modification

Modifying a custody agreement involves carefully drafting motions, gathering evidence, and skillfully arguing your position in court. Daniel Szalkiewicz and Cali Madia are able to argue your circumstances before judges and magistrates to help modify your agreement.