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New York Child Custody Modification Frequently Asked Questions

Q. Can child custody be changed?

A. A New York court can order child custody modification if it is in the best interests of the child, but you must be able to show a substantial change in circumstances that warrants the court ordering the change.

Q. My ex-spouse has child custody but my child wants to live with me. Is that enough for the court to give me custody?

A. A New York court will take a child’s desires into account, more so as the child gets older. However, the child’s desires alone are not enough, as the court must make a decision based on the best interests of the child and will consider many factors. Speak with your New York family law attorney about your individual situation.

Q. Can my spouse and I just agree to a change in custody?

A. You and your spouse must still get approval of the court for child custody modification. If both parents can agree to a change in child custody, a New York court will usually allow it, but only if it is in the best interests of the child.

Q: I have custody of our children, and my ex-wife is threatening to petition the court for a change in custody. Will the court modify custody in her favor because she is their mother?

A: Courts in New York do not automatically favor the mother over the father. They look at the best interests of the child and consider several factors. There must also be a significant change in circumstances for a New York court to order child custody modification.

Q. Can either parent ask the court to change child custody?

A. Either the custodial or noncustodial parent may file a petition to ask the court to order child custody modification.

Q. When will a court change child custody?

A. A court will order child custody modification if circumstances have changed significantly and it is in the best interests of the child. Factors the judge will consider include

  • Who if the child’s primary caretaker
  • Work schedules of the parents
  • Home environment of the parents
  • Degree of parenting skills
  • If a child has special needs, how well a parent can care for the child
  • Physical and mental health of each parent including history of alcohol or drug abuse
  • Domestic violence incidents in the parent’s past
  • The child’s desires, which is given more weight as the child gets older
  • The attitude of each parent in promoting a good relationship with the child and the other parent
  • Who is the custodial parent for the child’s brothers and sisters
Q: My ex-spouse often will not let me have my scheduled visitation, even though my lawyer has taken them to court more than once. Can I get custody?

A: If your child’s other parent repeatedly denies you visitation and ignores court orders, you should definitely speak with a New York lawyer about petitioning the court for to give you custody. A child custody modification may be warranted on the ground of parental unfitness. Of course, your lawyer will also want to petition the court to hold the other parent in contempt of court. You have a better change of gaining custody if you have gone to court several times and the child’s other parent just ignores court orders, so don’t let it slide when your child’s other parent denies you your visitation rights.

Q. My child’s other parent is moving and wants to take our child. Is that enough for the court to consider changing its order and giving me custody?

A. If your child’s other parent wants to relocate from the area with your child and you oppose it, you may be able to get custody. The judge will look at many factors, and, as always, make a decision based on the best interests of the child. Consult with a New York family lawyer experienced in child custody modification matters.

Q. My ex-spouse has custody but with their new job does not spend very much time with our child. Would a court give me custody?

A. It’s possible, depending on other factors. If the change in schedule is substantial such that your spouse is rarely home, that should be enough for the judge to hear your petition.

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