When Should Courts Dismiss Child Custody Modification Requests without a Hearing?

In the world of family law, many issues regarding everything from divorce, to maintenance, and even child custodyfamily-sitdown will depend on the unique factors that exist behind a particular case. For instance, whether child support is appropriate and how much should be awarded, though guided by a formula, will ultimately be determined by the circumstances of the parents, parties or spouses involved. However, one matter that always remains the same in cases concerning children is that New York courts are supposed to place the “best interests” of the child at the head of their considerations in making a decision about custody and parenting time. In deliberating about child custody, the New York Courts will endeavor to make a decision for the future of the child that will be most beneficial to the development, and future of that individual. However, as the needs of a child can change over time, the fact that an order is marked “permanent” doesn’t necessarily mean it cannot be changed under the right circumstances. There are two primary situations in which child custody orders are modified:

  1. When a parent violates court orders
  2. When one or both parents suggest a significant and material change in circumstances.

The circumstances that are deemed to be within the “best interests” of a child are subject to change in accordance with the elements surrounding that child at any given time. Therefore the New York court may grant custody modifications if circumstances change significantly since the time the original order was put in place. Modifications, however, must be made based on a change that was not obvious or present during the time of the original order. Examples of a substantial and material change in circumstances might include the use of illegal drugs, a felony conviction, or evidence of child abuse. If the needs of the child changes – such as a changing need in medical attention or schooling, the courts may also consider modification, but only if enough evidence is available to determine that such an alteration is in the child’s best interests.

Defining a Material Change in Circumstances

Crucially, as I have noted in previous cases regarding requests for child custody modification, parents seeking alterations in custody arrangements aren’t automatically entitled to a hearing. Instead, they need to show evidence substantial enough to warrant a hearing. In other words, though either parent might request a modification to a child custody order, the burden of proof falls upon that parent to show that there has been a substantial change in circumstances that requires the court to re-examine the case. It is likely not enough to simply rely on hearsay or unsubstantiated claims in an attempt to prove a change of circumstances because you’re unhappy with the results of a case. There must be a real, substantial, material change in circumstances.

Once a custody order is made, courts need to determine that a substantial change of circumstances was proven, by a preponderance of evidence (more probably true than not), before reaching the “best interests” analysis. The essential elements of a material change should involve some significant alteration to the circumstances that surround the child in question to a degree wherein the best interests of the child or no longer served. That material change might jeopardize the welfare, health, and safety of the child. However, simply implying that there has been a change in circumstances should not necessarily be enough to warrant a hearing. In order for both parties to be pressed to go on with additional legal processes, there needs to be some manner of evidence present.

Dismissing Custody Requests Without a Hearing

In a recent child custody case decided by the Second Judicial Department (which controls in Long Island and Queens among other areas) in 2014 called, Macchio v Macchio, the court considered a request to modify custody that was made in the weeks following the last court order for custody. In this situation, the court chose to dismiss the modification request without allowing a hearing, simply because there was no evidence present to demonstrate a change of circumstances that would support a finding that a change in custody was in the best interests of the child. Crucially, it is not enough to simply suggest some bare bones accusations regarding potential circumstances, or provide some self-serving allegations without any proof to back those concerns up. Alleged changes in circumstances are not material changes, and therefore cannot be regarded as a significant reason to allow for a modification in child custody agreements.

The material change in circumstances standard that surrounds child custody modifications is there for a reason. Not only does it help to avoid wasted time and resources on cases that have no evidence to suggest the need for an additional case to go forward, but it can also limit the unnecessary alteration of custodial agreements. After all, changes to child custody agreements should only be made according to the best interests of the child in question, and the need for a material change in circumstances prevents parents from requesting alterations without a substantial reason for taking such a step. Consequently, the children involved will not have to suffer frequent disruptions to his or her routine, home, or life in general. Furthermore, the scrutiny and questioning of children by forensic evaluators, the court during an “in camera” interview, forensic evaluators, and others that is frequently involved with custody battles, if possible, can be avoided when the circumstances have not appropriately changed.

It is preferable to avoid filing a request to change custody orders unless you can accurately demonstrate that there are reasons for requesting a change. If you fail to provide any substantial evidence that alterations have taken place, your case should be dismissed. Furthermore, if actual evidence of a change of circumstances occurs at a later stage, you could run the risk that you are taken less seriously in court.

For more information on child custody modifications and agreements, please contact me, Mr. Darren M. Shapiro. You can schedule your free initial 30-minute consultation at your earliest convenience by contacting us through our online form, or via a phone call at 516-333-6555.