Long Island Family Law and Mediation Blog
When you apply for a modification of an earlier order in a New York child custody dispute, you’ll have to present evidence showing a change of circumstances to justify that the modification is necessary to protect a child’s best interests. If you stipulated to the earlier order there is case law that stands for the proposition that you can present evidence of any changes from the time of stipulation.
Although you should show that the substantial change occurred since the issuing of the order, the court may consider all relevant factors related to the best interests of the child when determining child custody, sometimes, even, including the behavior of the parents before and at the time of stipulation. In determining whether a change in circumstances warrants the modification of a custody arrangement, the court will look at whether the change implicates the fitness of the custodial parent or affects the nature and quality of the noncustodial parent’s relationship with the child. There may be a time lag between a stipulation and the court’s issuance of an order, but this should not be a lost period for the purposes of presenting evidence to prove that the modification is appropriate.
For example, in the Matter of MMH v. William DH, the court considered a New York mother’s request for a modification of an earlier order. She wanted an order for sole custody and an order that would allow her to move to another state. The father opposed the application for these orders.
The court explained that the mother had received a six-month order of protection from the court in 2003. The order required the father to go to substance abuse counseling and AA meetings, and to stop stalking, harassing, or menacing the mother. The mother received another order of protection in 2004, and it ordered the father to leave the house. The couple was divorced in 2007.
While the divorce was pending, in 2006, the parties entered into an order of custody on consent. It provided for joint custody and set the mother’s house as the child’s primary physical residence. The mother was given final decision-making authority, and the father had custodial time on alternate weekends. Overnight visits were only to take place at his parents’ home and had to be supervised by them. The father was prohibited from consuming alcohol or other intoxicants and couldn’t drive in the car with the child until further order of the court. However, the order also restricted both parents from moving more than 25 miles from their current residences without 90 days notice to the other.
At the same time the parents agreed to this custody order in 2006, the court issued an order of protection in the divorce action. This order provided that the father would have no contact with the child other than what was specified in the written custody order. The protection order expired in August 2008, and the mother didn’t try to extend it because the father was incarcerated at the time of its expiration. However, in March 2008, the father showed up at the child’s school and created a scene, embarrassing the child. The court issued a temporary order of protection in 2009. It expired in 2010.
At the modification hearing, the mother believably testified she’d only agreed to the 2006 custody order permitting the father to have alternate weekends because her counsel had advised her the provisions were standard, and she wanted the father to complete rehabilitation to address alcohol and substance abuse issues, for which he’d received many convictions and gone to many rehab programs. The court considered her reasons for agreeing to the 2006 order as part of its analysis of whether a modification was appropriate.
The mother had previously forgiven about $20,000 in child support arrearages, and at the time of modification, the father was again in arrears of about $15,000. The mother was unable to make mortgage payments on her house and would have to move, whether or not the court allowed her, to relocate to North Carolina where her parents live.
At the modification hearing, the mother and father had testified and submitted various documents, including school records and correspondence. The court took judicial notice of prior orders and conducted an interview of the child. After the hearing, only the attorney for the child submitted a proposed visitation schedule. The attorney for the child agreed with the mother that the mother and child should relocate to North Carolina.
The court considering modification explained that when parents enter into a stipulation about custody, an order won’t be modified unless (1) there’s a significant change of circumstances “from the time of stipulation,” and (2) the modification would be in the best interests of the child, based on the totality of the circumstances. This means that the court can consider evidence related to why there’s a significant change prior to the entry of the order, as long as it occurred after the stipulation was signed. A parent’s good cause to relocate can constitute a sufficient change in circumstances.
The court further explained that a parent trying to relocate would have to show good-faith reasons for moving and prove by a preponderance of evidence that it’s in the child’s best interests to permit the relocation. The court in this case looked back to 2004 (before the 2006 consent order), when the father had his last unsupervised contact with the child, to make a determination. It noted the mother had herself helped the father have visits with the child in a supervised setting and hadn’t interfered with the child’s relationship with the father. It also reasoned that the joint custodial arrangement to which the parties had agreed had never been a reality. Even after the entry of the consent order, the father had only limited contact with the child.
The court concluded there had been a significant change in circumstances since the entry of the consent order and modified the prior custody arrangement to give the mother sole custody and allow her to move to North Carolina.
For more information about modifying a child custody arrangement in New York, schedule a free initial appointment with Darren M. Shapiro. Mediating couples are invited to come together for their free consultation. You can access us by filling out our online form or contacting us via phone at 516-333-6555.
More Blog Posts:
Lawyer Fees in Divorce and Matrimonial Cases, November 23, 2015
What are the New York Divorce Residency Requirements? November 7, 2015