It is a fundamental principle in New York Family law that for a request to modify a custody order to be able to proceed in court, be it Supreme Court or Family court, there needs to be a substantial change of circumstances. Only if there is a substantial change of circumstance can the court make a determination on what new child custody order is in the best interests of the child or children. I have previously blogged about the quandary about when should the change of circumstances be measured from? Is the change of circumstances to be measured from the date the case was settled or in the cases that went through trial from the close of evidence at trial? Or, in the alternative, should the change of circumstances be measured from the date the order is finally drafted and entered with the clerk of the court? This can be an important distinction as often there is a substantial lag in time between the two events.
A recent case, Matter of Ladd v Krupp, 136 A.D.3d 1391 (4th Dept. 2016) decide in the fourth department has highlighted this disparity. One of the issues raised on appeal was if it was error to use one date as opposed to the other. The court ended up resting its decision on the fact that it believed it did not matter, for that case, which date the change of circumstances was measured from as from either date there was a substantial change of circumstances. However, clearly, it can matter in other cases. That case cited various precedents which detailed the different dates that are used to measure the change. Continue reading