Child Custody Modification in New York

A custody order is a legal document issued by a family court that determines the custodial arrangements for a child following a separation or divorce of the child's parents. It outlines which parent (or guardian) will have physical custody of the child and the terms of visitation or parenting time for the non-custodial parent. The custody order also typically addresses legal custody, which involves decision-making authority regarding the child's upbringing, education, healthcare, and other important matters. Once issued by the court, a custody order is legally binding, and both parents are required to comply with its terms. Child custody orders are generally considered to be final. However, they can be modified if very specific requirements are met. If you feel that your child custody order needs to be modified, contact an experienced New York child custody lawyer at Stephen Bilkis & Associates. Modifying a child custody order in New York can be complicated, requiring a thorough understanding of child custody law. We have the experience, knowledge, and resources to help ensure your legal rights are protected.

Standard for Modifying Child Custody Order in New York

In New York, the standard for modifying a child custody arrangement is based on the principle of serving the best interests of the child. This standard recognizes that children's needs and circumstances can change over time and aims to ensure that custody arrangements remain conducive to their well-being. That there must be a change in circumstances is critical. To modify a child custody arrangement, a significant change in circumstances must be demonstrated. This change must be substantial and material, affecting the child's welfare or necessitating a reevaluation of the existing custody arrangement. Courts typically require evidence showing that the proposed modification is in the child's best interests and addresses the new circumstances adequately. The court will deny a petition if there is not a change in circumstances.

For example, in James v. Tammy, 45 A.D.3d 1358 (N.Y. App. Div. 2007), the custody arrangement was that Tammy, the mother, had primary custody for the child and James, the father, had visitation. In addition, while not part of the custody arrangement, Tammy relied on James for childcare. As a result, James got to spend more time with the child beyond his visitation. At some point the mother moved and no longer relied on James for childcare. James filed a petition for a modification of the existing custody arrangement, asserting a substantial change in circumstances. The Family Court denied James's petition for a change in custody and the Appellate Division agreed, asserting that James failed to establish a change in circumstances that necessitated a change in custody to ensure the best interests of the child. That the mother no longer relied on the father for child care did not mean that the current custody arrangement was no longer in the child’s best interests.

Courts will consider various factors when determining whether to modify a custody arrangement, including:

• The child's relationship with each parent
• The child's age, preferences (if mature enough), and needs
• Each parent's ability to provide a stable and nurturing environment
• Any history of domestic violence or substance abuse
• Any other relevant factors impacting the child's well-being

For example, parental alienation has been determined by New York courts to be a sound basis for a custody modification. In Grabowski v. Smith, 123 N.Y.S.3d 313 (N.Y. App. Div. 2020), the court granted the mother’s petition for a custody modification after she presented evidence of the father’s alienation efforts as well as his violation of custody orders.

It's important to note that the burden of proof rests with the parent seeking modification, who must demonstrate the changed circumstances and the necessity of the modification for the child's welfare.

Note that violating a custody order can have serious legal consequences, including fines, loss of visitation rights, or even contempt of court charges. Thus, it is important to contact an experienced New York child custody lawyer and petition the Family Court in order to change your child custody order.

Steps to Take to Modify Child Custody

To seek a modification to a child custody order in New York, here are the steps.

• Assess the Need for Modification: The first step in modifying child custody is to assess whether a significant change in circumstances has occurred since the original custody order was issued. This may include changes in the parents' living situations, work schedules, or the child's needs and preferences. Note that it’s not enough that you simply want to spend more time with your child.
• Consult with an Attorney: Seeking guidance from an experienced New York child custody lawyer is crucial when considering a custody modification. They can assess your situation, explain your rights and options, and guide you through the legal process.
• Gather Evidence: To support your request for modification, gather relevant evidence demonstrating the changed circumstances and why modification is in the child's best interests. This may include witness statements, school records, medical reports, or other documentation. For example, in Matter of Madden v. Cavanaugh, 307 AD2d 266 (N.Y. App. Div., 2003), the father petitioned the court to request a modification of the child custody order. The Family Court dismissed his petition noting that the parent seeking a change in custody is not automatically entitled to a hearing. In order to get a hearing the parent must first make some evidentiary showing that a custody modification is warranted. In this case the court found that the father’s allegations were not sufficient to warrant a hearing to consider a change in custody.
• File a Petition for Modification: The next step is to file a petition for modification with the family court that issued the original custody order. The petition should clearly outline the reasons for seeking modification and provide supporting evidence.
• Participate in Court Proceedings: If the other parent contests the modification or if mediation is unsuccessful, the matter may proceed to a court hearing. Both parents will have the opportunity to present their case, provide testimony, and submit evidence to the court. In some instances the court will interview the child to determine their preference. This process is called a Lincoln Hearing. A Lincoln hearing, named after the landmark case Matter of Lincoln v. Lincoln, 24 N.Y.2d 270 (1969), is a court proceeding in New York to determine whether a child's expressed desire to change custody aligns with their best interests. The hearing allows the child to testify or be interviewed by the judge in chambers to ascertain their wishes regarding custody. The judge evaluates the child's maturity, understanding, and the reasons behind their preference, considering it alongside other relevant factors in determining the custody arrangement.
• Attend Mediation (if applicable): In some cases, parents may be able to reach a mutually agreeable modification through mediation. A neutral third party facilitates discussions between the parents, helping them reach a resolution outside of court.
• Finalize the Modification: If the court grants the modification, the new custody arrangement will be documented in a revised custody order. Both parents must adhere to the terms of the modified order, which may include specific visitation schedules, communication protocols, and provisions for resolving disputes.

Emergency Child Custody Modification

In New York, emergency child custody modifications are pursued in situations where immediate action is necessary to protect the safety or well-being of the child. These modifications deviate from the standard process due to the urgency of the circumstances. Pursuant to New York Family Court Act § 651, the court has the authority to issue emergency orders regarding custody when there is a substantial risk of harm to the child.

New York courts apply a high standard when considering emergency custody modifications, prioritizing the child's safety and best interests. The court must find clear and convincing evidence of imminent harm to justify the emergency intervention.

It's important to note that emergency custody modifications are temporary in nature and typically remain in effect until a full hearing can be held to address the underlying issues. Additionally, both parents are entitled to due process and have the opportunity to present their case at a subsequent hearing to determine the long-term custody arrangement.

To process for seeking an emergency custody modification includes:

• Filing a Petition: To initiate an emergency custody modification, a parent or guardian must file a petition with the family court outlining the urgent circumstances necessitating the modification. This petition should provide detailed information about the imminent risk to the child's safety or well-being.
• Immediate Review: Upon receiving the petition, the court will conduct an immediate review to assess the allegations and determine whether there is sufficient cause to warrant an emergency modification. The court may expedite the process to ensure prompt action in cases of imminent danger.
• Ex Parte Hearing: In some cases, the court may conduct an ex parte hearing, where only one party (the petitioner) presents their case without the other party present. This allows the court to address the emergency situation without delay, taking necessary action to protect the child.
• Issuance of Emergency Order: If the court finds that there is a substantial risk of harm to the child, it may issue an emergency order modifying custody to ensure the child's safety. This order may grant temporary custody to the petitioning parent or impose restrictions on the other parent's contact or visitation rights.

If you feel that your child is in danger of immediate harm such that an emergency child custody modification is necessary, immediately contact an experienced child custody attorney serving New York.

Contact Stephen Bilkis & Associates

When circumstances change and the existing child custody arrangement no longer serves the child's best interests, pursuing a modification is essential. Understanding the grounds and legal process for modifying a child custody order in New York is important. If you find yourself in need of modifying a child custody order, consult with a skilled child custody attorney serving New York to ensure the best outcome for you and, most importantly, for your child. At Stephen Bilkis & Associates, we are here to provide you with expert legal guidance and representation throughout this crucial process. Contact us today to discuss your case and take the first step toward securing the best future for your child. Contact us 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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