Custody orders are not meant to remain in place forever with no changes. Courts recognize that your life may change and that, almost certainly, your child’s needs will change as they age. A parenting plan that works for a two-year-old will definitely not work for a 16-year-old. Because of this, there is a procedure in place to seek a modification of your custody and visitation order.
When Can a Custody Order Be Modified?
While it is true that there is generally always an opportunity to seek modification of a custody order, that opportunity will not happen immediately after your custody order is put in place. Some parents assume that upon receiving a custody order which they are unhappy with that, they can go right back to court and seek to have it modified. New York courts have specific rules in place that are designed to force the family to give the custody arrangement a serious try before returning to court to get it changed.
To be able to even ask the court to modify a custody order, the parent seeking the change must show that there has been “a substantial change in circumstances.” This needs to be a major change in one of the parents’ lives or in the child’s life. Examples of substantial changes in circumstances include:
- There has been a significant change in the child care arrangement (such as a new full-time nanny)
- The child wants to change the order and is over age 12
- The child is somehow endangered by a parent’s actions (or inactions), or the home environment is unsafe
- The child is diagnosed with special needs or a chronic or serious illness
- The child is beginning high school, a new school, starting a part-time job, undergoing new intense and serious study or training for a sport or vocation, or there is some other huge change to their schedule, such as going away to boarding school
- One parent refuses to communicate with the other parent or interferes with the other parent’s scheduled time
- Abuse or neglect has occurred against the child, or domestic violence has occurred in one of the homes
- A parent refuses to follow parts of the court order, such as attending counseling with the child
- A parent is moving to another city or state
- A parent is moving in with a new partner
- A parent is charged with a crime
- A parent experiences a significant change in income (such as through job loss)
- A parent develops a substance abuse addiction or a serious illness
In general, a court does not want to issue a custody order (or divorce decree with custody as part of it) and then see the parties back in court within a month or two, unless something severe has occurred (such as child abuse or child endangerment). Most judges will be very annoyed by such a petition and be unwilling to give it much consideration unless there truly has been a very serious change that endangers the child. Your attorney can help weigh the severity of your situation and determine when you should return to court. In some situations, you may be better served by waiting and gathering more evidence so that when you do go to court, you can present an extremely strong case.
The Standard for Modification
Once the court concludes that there has been a substantial change in circumstances, you will be permitted to proceed with your request for modification. Whether or not the order will be modified is based on what is in the child’s best interests. This is the same standard that was used to initially determine your custody order.
The best interests analysis permits the court to look at a wide range of factors, including:
- Which parent is the primary caretaker
- Where the child’s siblings and half-siblings live and their schedule
- The home environments of both parents
- The financial situation of each parent
- The existing custody arrangement
- The educational opportunities each parent can provide
- The court’s observation of both parents
- The child’s wishes, if they are old enough to have their preference considered
- The child care needs and arrangement
- Substance abuse by the parents
- Mental and physical health of the parents and child
- Interference with parenting time by one parent against the other
- Domestic violence or child abuse or neglect
In a modification case, the court will focus in on the issues raised by the parent who is seeking the modification. There will likely be a cursory examination of the other elements to ensure that the facts about those have remained the same. The key inquiry will be if, in fact, the change in circumstances requires the court to modify the custody arrangement so that it will remain in the child’s best interests.
Proving a Modification is Necessary
Your attorney will work with you to collect the evidence and facts needed to prove that a modification should occur. You will likely need to testify, and so will the other parent. It is helpful to provide your attorney with:
- The names of witnesses who have information regarding the change that has occurred
- Evidence you have gathered such as photos, videos, voice recordings, documents, and more
- Details including dates and events which you should track in a journal
If you receive your initial custody order and are determined that you will get it modified no matter what, you should immediately begin collecting evidence to support your position from the moment the court issues the custody order. The more evidence you can collect, the stronger your case will be. Being able to show that there are patterns of unsafe behaviors or issues over a period of time is helpful to your case when you do bring it.
Other Avenues to Modification
To have your case for modification heard in court, you must prove a substantial change in circumstances and then show that it is in the best interest of the child to make the requested changes. However, there are two ways in which you can avoid going to court.
- The first method is through a settlement. You and the other parent can negotiate a change on your own through your attorneys and submit it to the court. The court must approve it, but as long as it appears reasonable, the court will generally rubber-stamp it. You can go through mediation or simply negotiate directly via your attorneys. This provides for a wide variety of discussions and exchanges, which can include modification of alimony, child support, or property distribution in exchange for a modification in custody. Settlement talks provide the freedom to discuss a wide variety of issues and concerns, which can be very convincing and assist in working out a new custody order.
- The other process is through the use of a private judge. You can initiate a case and both parties then agree to have it arbitrated by a paid private judge outside the court system. The judge’s decision will be binding, and the procedures will be completely private and slightly less formal than in court. This can be an excellent avenue to pursue if there are sensitive matters that will be brought up.
New York state is designed to keep a custody order in place unless there has been a significant shift in the situation involving the parents and/or the child. With a skilled New York child custody attorney, you are more likely to be able to present a convincing case that a change has occurred and that the custody order should be modified.