How to Modify Child Custody in New York

Although child custody orders in New York are generally considered final, in reality, they can be changed. However, Family Court will only modify child custody in New York when circumstances warrant. Regardless of the reason you seek to modify child custody, navigating the legal process in New York requires a clear understanding of the steps involved as well as the guidance of an experienced New York child custody lawyer to help ensure the best outcome for you and your child.

Step 1: Assessing Eligibility for Modification

Before initiating the modification process, it’s important to determine whether you meet the eligibility criteria set forth by New York law. It’s not enough that you simply want to change the custody arrangement. In the state of New York, custody orders can only be modified if there has been a substantial change in circumstances since the original order was issued or if it is in the child’s best interest to modify the existing arrangement. Domestic Relations Law § 236

• Relocation: A parent's relocation to a different city, state, or country can often be considered a substantial change in circumstances, particularly if it impacts the existing custody arrangement or the child's access to both parents.
• Change in Living Situation: Significant changes in a parent's living situation, such as remarriage, cohabitation, or the birth of additional children, may be deemed relevant if they affect the stability and well-being of the child.
• Parental Fitness: Evidence of a parent's inability to provide a safe and nurturing environment for the child due to factors such as substance abuse, domestic violence, or mental health issues may constitute a substantial change in circumstances warranting modification.
• Child's Needs: Changes in the child's needs, such as educational or medical requirements, may necessitate adjustments to the existing custody arrangement to ensure that the child's best interests are met.
• Parental Relocation: If one parent seeks to relocate with the child, either within or outside of New York, it may trigger a review of the existing custody arrangement to determine whether modification is necessary to accommodate the relocation.
• Child's Preference: Depending on the child's age and maturity level, their expressed preference regarding custody may be considered a relevant factor in assessing whether a modification is warranted. To determine the child’s preference, the court may conduct a Lincoln hearing. The purpose of a Lincoln hearing is to provide children involved in custody or visitation disputes with an opportunity to express their preferences regarding custody or visitation arrangements directly to the judge. During a Lincoln hearing, the judge typically meets with the child in chambers, away from the presence of the parents and their attorneys. The child is given the opportunity to express their wishes regarding where they want to live, how they want visitation to be arranged, and any other issues that are important to them. See case Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 (1969). It's important to note that while the child's preferences are considered by the court, they are just one factor among many that the judge will take into account when making a custody or visitation determination.
• Parental Alienation: Instances of parental alienation or interference with the other parent's relationship with the child may constitute a substantial change in circumstances, particularly if it has a detrimental effect on the child's well-being. For example, in Grabowski v. Smith, 123 N.Y.S.3d 313 (N.Y. App. Div. 2020), Court determined that father's parental alienation actions along with her violations of the custody arrangement required a modification in the custody order.

Note that each case is unique, and the determination of what constitutes a substantial change in circumstances will ultimately depend on the specific facts and circumstances presented to the court. Seeking guidance from a qualified New York child custody lawyer can help ensure that you present a compelling case for modification based on relevant changes in circumstances.

Step 2: Gathering Necessary Documentation

Once you’ve established eligibility for modification, the next step is to gather all relevant documentation to support your case. This may include:

• Documentation of significant life changes such as relocation, job loss, or changes in the child’s needs.
• Records of any incidents or issues that have arisen since the original custody order was issued.
• Any evidence demonstrating that the proposed modification is in the child’s best interest.

Step 3: Initiating Legal Proceedings

In New York, the process of modifying child custody typically begins by filing a petition with the family court in the county where the original custody order was issued. The petition should outline the reasons for seeking modification and provide supporting evidence. See Uniform Rules for the Family Court § 205.6

Step 4: Serving Notice to the Other Parent

After filing the petition, you must ensure that the other parent is properly served with notice of the legal proceedings. This can be done through personal service by a process server or by certified mail, return receipt requested. Civil Practice Law and Rules § 308

Step 5: Attending Court Hearings

Once the other parent has been served with notice, the court will schedule a series of hearings to address the modification request. During these hearings, both parties will have the opportunity to present evidence and arguments supporting their positions. It’s essential to be prepared for these hearings and to have legal representation to advocate on your behalf.

Step 6: Mediation and Alternative Dispute Resolution

In some cases, the court may order mediation or alternative dispute resolution (ADR) to help the parties reach a mutually agreeable solution without the need for a trial. Mediation can be a valuable tool for resolving custody disputes amicably and can often lead to faster and less contentious outcomes.

During mediation sessions, each party expresses concerns and priorities regarding custody arrangements. The mediator guides discussions, clarifies misunderstandings, and encourages dialogue. Through collaboration, parties explore options and potential solutions, brainstorming custody arrangements prioritizing the child's best interests and parents' preferences.

As agreements form, the mediator assists in drafting a document outlining custody terms. Reviewed by legal counsel, the agreement is submitted to the court for approval, becoming a legally binding order upon judicial review.

Step 7: Presenting Evidence and Witness Testimony

If mediation is unsuccessful, the case will proceed to trial, where both parties will have the opportunity to present evidence and witness testimony in support of their positions. It’s essential to work closely with your attorney to prepare a compelling case and to gather any necessary evidence or witnesses to support your arguments.

Step 8: Court Decision and Order

After considering all the evidence presented, the court will issue a decision on whether to modify the existing custody arrangement. If the court determines that modification is warranted, it will issue a new custody order outlining the revised terms and conditions. Domestic Relations Law § 240

Step 9: Compliance and Enforcement

Once a new custody order is issued, both parties are legally obligated to comply with its terms. Failure to adhere to the court-ordered custody arrangement can result in enforcement actions, including fines, contempt proceedings, or even changes to custody or visitation rights. Domestic Relations Law § 245

Contact Stephen Bilkis & Associates

Modifying child custody in New York is a complex legal process that requires careful attention to detail and adherence to specific statutory requirements. By following the steps outlined in this guide and seeking guidance from a qualified child custody attorney serving New York, you can navigate the process with confidence and work towards achieving the best possible outcome for you and your child. Remember, the welfare of the child is the goal, and any modifications to custody arrangements should be made with their best interests in mind. Contact Stephen Bilkis & Associates at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Nassau County, Queens, Bronx, Brooklyn, Long Island, Manhattan, Staten Island, Suffolk County and Westchester County.

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