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.
As a result of the different authorities that can be used to dictate when the change of circumstances should be measured from, the advocacy of someone’s child custody lawyer could prove to be very important in influencing a court about the date to measure the change of circumstances. Concerns regarding child custody and visitation represent some of the most complicated and emotionally loaded issues that can arise during a divorce procedure. After all, the aim of the courts is to limit the disruption that a divorce, or other reason that parents are divided, has on the child’s life as much as possible – adhering to what they can identify as the child’s “best interests”. Because of this, custody decisions can easily have long-term effects, meaning changes in location, and significant readjustments for the child. As such, the New York courts do not take the impact of custody decisions lightly.
A child custody agreement is always intended to put the child first – offering stability and cooperation in an environment that is best suited to the parents and children involved. Of course, despite the appropriate nature of an original order for child custody at any given time – the fluctuating needs of children as they grow, and the fact that parents can change their behaviors with time – could mean that a change in circumstances make child custody changes essential. But when does that change of circumstances need to have taken place?
In some cases, it is possible for divorced parents to change their custody plan without going to court – so long as they are willing to cooperate. However, I find that most of the time this simply isn’t the case. People will often fight tooth and nail for their right to have, or maintain custody, and this leads to regular battles over what is “right” for any given child. In cases where parents cannot agree on child custody modifications, the only solution is to seek the help of the courts. If there is a substantial change of circumstances and the modifications in question are beneficial for the children involved, then a judge will be likely to approve them.
One of the most essential reasons to seek out child custody adjustments is the presence of a “change in circumstances.” Essentially, this change must be significant enough to affect the child’s life to such an extent that living with one parent, or the parenting schedule as it exists, or having one parent permitted to maintain legal custody is no longer in their best interests. Determining what counts as a “significant” change in circumstances can be somewhat complicated.
For instance, if one parent needs to move away from the area for the purpose of work, changes to the parenting plan must be made. For instance, custody arrangements might be altered, or longer visitation times might be allowed with the non-custodial parent. Some states may require the custodial parent involved to give written notice of a move that is intended to the other parent. This notice should be given with enough time to allow the other parent to launch a formal objection to the court. Similarly, it is possible to suggest that a significant change in circumstances has taken place if the custodial parent is living in such a way that might put the children’s safety or lifestyle at risk. After all, the courts of New York must always work to promote the best interests of the children involved in any case. Similarly, if the non-custodial parent starts to show signs of potentially dangerous behavior, like addiction, the custodial parent might go to court and request alterations with the schedule or changes in custody.
So, when does a change in circumstances need to take place? Can it be addressed from the date that the case was settled in court, or from the date that the order was entered? In the case of Jeffrey R. Drew vs. Sonya Gillin, 792 N.Y.S.2d 691 (3rd Dept. 2005). the parents agreed to an order given by the lower court which allowed for joint custody of their single child – with primary custody awarded to the mother. However, proceeding that award, the father sought out sole custody, suggesting that since the original order was entered, the mother had begun to excessively drink alcohol, which affected her ability to care for the child. As a result, the child’s health and emotional needs were neglected, and they were also late to school, or absent on numerous days. The appellate court chose to award the father sole custody, making extensive findings to demonstrate that a significant change in circumstances had taken place since the custody order was entered.
In the case above, there were also additional factors that influenced the court’s decision, including the fact that child was witness to domestic violence against the mother from the mother’s boyfriends, and by the mother against the father. At the same time, the child had been exposed to a known child molester, and the mother drank excessively. This study shows that the court can modify orders if the circumstances of the child have been significantly changed – and that the material change must have occurred after the entry of the order. Of course, a circumstance that was evident at the time that the first order was rendered would not support a finding of a change in circumstances during a future court case. What’s more, the change must indirectly or directly affect the wellbeing of the child. Various concerns can be addressed regarding the wellbeing of a child, such as:
- Whether a party has the ability to properly supervise the child
- Whether the party can care for the specific health needs of the child (hygiene, health, diet)
- Whether the party is financially capable of caring for a child
- Whether the party oversees the development and educational needs of the child
To learn more about how child custody matters are determined, and the issues that must be considered when requesting a modification of existing orders, please contact me, Mr. Darren M. Shapiro at your earliest convenience. You can either choose to schedule your free initial consultation of up to half an hour, or mediating couples can also schedule a 30-minute consultation. Get in touch either via our online form, or over the phone at 516-333-6555.