Parenting Time Bullet Guide (Part 7): Dismissing Modification Requests and Sobriety

Parents-Waving-300x200Parenting time and child visitation cases are often some of the most complicated for any family to deal with. Unfortunately, when two parents get a divorce, or decide to separate, decisions need to be made about how the custody of the child should be split between the two people.

In many cases, it’s possible for two parents to come to an agreement based on the perceived best interests of the child. Unfortunately, after a while, one parent or another might decide that the order of child visitation or parenting time is no longer appropriate for the situation. This is when people come to Child custody lawyers like me for help requesting a modification.

In this section of our parenting time bullet guide, we will be looking at occasions when the courts may dismiss a request for modification for custody and parenting time without a hearing. We will also be touching on sobriety as an issue for visitation cases.

Dismissing Modification Requests without a Hearing

The courts of New York are required to follow the standard of “Best Interests” of the child(ren) when determining what should happen with parenting time, visitation, and child custody when two parents separate or are not living together. This means that the courts will always take the action deemed to be in the best interests of the child or children, when an agreement between the parents cannot be made. The courts carefully consider the situation of each case before issuing an order, and will avoid making any changes to that order, which may disrupt the child, unless there is an agreement to do so or there is a substantial change of circumstances that makes doing a change in the best interests of the child or children.

  • There are circumstances when a child visitation and custody agreement may be modified. The two most common examples are when one or both parents suggest that a significant change has happened in the circumstances of the family. Another reason to change an order is that one of the parents has violated the current order and perhaps make up time needs to be scheduled.
  • Modifications based on changes in circumstances may only be requested when the change is something that happened after the issuing of the initial order. This could include things like abuse of illegal drugs, drugs other that as prescribed by the parent with visitation or custody, or perhaps even criminal convictions. Many cases won’t automatically be entitled to a hearing, as I have told my clients before. When a parent wants to request a modification to an order, the burden of proof will be on them to show the court why something should be changed.
  • In some cases, to avoid disruption to the child and family dynamic, the courts will choose to dismiss a custody request or change to a child visitation order without a hearing. For instance, the court may choose to dismiss the modification request because no evidence is delivered to highlight a significant change in circumstances. It is not enough to simply suggest a change has happened or make unfounded accusations.
  • As I remind my clients, although they can be frustrating, the change in circumstances rules are there for a reason, to avoid wasted time in court, and to ensure that children don’t have to endure too many changes to their lifestyle as they’re growing up. Children should not have to suffer frequent disruptions to their home life or routine. This gives them a sense of permanency, so to speak.

Sobriety and The Effect on Parenting Time

Sometimes, it can be difficult for a set of parents to come to terms about custody and parenting time because of an issue with sobriety. If a parent has had previous issues with sobriety, the court may struggle to determine whether exposure to that parent in any format will be in the best interests of the child. Sometimes, exposure will be limited to supervised visitation.

  • I have seen cases where people have argued that exposure to a parent with sobriety issues is never in the best interests of the child. However, the courts believe that the best interests in the child often lay in having a relationship with both of their parents. The courts will not automatically dismiss a case for visitation just because of a sobriety issue and must consider the circumstances of the case carefully.
  • When making decisions about parenting time and visitation, the courts will need to consider the psychological benefits of a relationship with the parent against the potential damage of an unstable parental figure.
  • Sometimes, sobriety can represent the cause for a change in circumstances which might lead to a modification in a child custody order. For instance, in one case, the matter of Ruiz v Travis, the appellate court looked at a case where the mother petitioned for a change in custody after showing she had been able to maintain her sobriety for a significant time and gain meaningful employment. The court in the case above ruled that the case could be revisited because there had been a possible significant change in circumstances.
  • Elsewhere, in the case of Grassi vs Grassi, the courts dismissed a request for supervised visitation, when she could not show a significant change in circumstances. The appellate court also ruled that the trial court erred by saying the mother had to maintain sobriety and visit therapy sessions before considering a request for modification, and the appellate court said the previous judge had no right to compel a parent to go through therapy as a condition of visitation.
  • As a child custody attorney, I’m used to dealing with various cases wherein child visitation and parenting time issues might be affected by all aspects of a person’s life and relationships. There are some cases where visitation may be affected by issues with drugs and alcohol use which must be addressed to determine the safety and best interests of a child.

If you have questions about the topics listed above, or you feel that you need some guidance about your own child visitation and parenting time case, you can contact me today for a free initial consultation. The initial consultation can last for free for up to 30 minutes to discuss your case.  You can contact our office to get on the calendar either via my online form on this website, or via 516-333-6555.

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