While many people get divorced or resolve a child custody action without ever seeing the inside of a courtroom again, there are times when issues arise that require them to return to Court due to a change in circumstances.
Child custody modification:
The Court will only modify custody if there has been a material change in circumstances such that a modification is in the “best interests” of the child(ren). The Courts do not wish to become involved in petty day-to-day disputes between parents such that, with each argument between them, they seek a change in custody. Typically, when balancing the equities of whether or not to seek a modification of custody, the Court will look to the following, non-exhaustive, list of factors:
The original placement of the child(ren);
The length of time the child(ren) have been with the current custodial parent;
The child(ren)’s wishes;
The relative fitness of each parent;
Any abduction or defiance of legal process by either parent;
The quality of the home environment;
The parental guidance given to the child by each parent;
The financial stability of each parent;
The parent’s ability to provide for the child’s emotional and intellectual development; and
The presence of the child(ren)’s siblings in the home.
The Court will look to the above factors and determine whether a material change in circumstances exists such that modification of custody is in the “best interests” of the child(ren). You must remember that Courts do not like disturbing the status quo and, as such, child custody petitions should not be filed unless you are certain that the child(ren)’s “best interest” are not being served by the current custody arrangement.
The special case of relocation:
The Courts in New York, in cases where the custodial parent seeks to relocate to a “far off” location with the parties’ child(ren), closely scrutinize the reasoning behind such a request. This furthers the public policy that children should have the benefit of having a relationship with both of their parents. Regular visitation with the non-custodial parent serves the child(ren)’s “best interests” an, if one parent is permitted to relocate, such visitation will likely cease. In cases involving the custodial parent seeking the relocate, the Court looks to the following factors:
Each parent’s reason for either seeking or opposing the relocation;
The impact of the relocation on the quantity and quality of the child(ren)’s future contact with the non-custodial parent;
The feasibility of preserving the relationship between the non-custodial parent and the child(ren) through suitable visitation arrangements (if the Court does permit the relocation, the custodial parent will likely be ordered to pay the costs associated with effectuating the non-custodial parent’s new visitation schedule); and
Any relocation restrictions included in a prior settlement or order.
Of course, the Court is free to consider any other factor it deems relevant based upon evidence and testimony introduced at trial. Once the trial is completed, assuming no settlement is reached beforehand, the Court will issue a written decision either permitting or denying the relocation and setting forth the reasoning behind such decision.
Child support modification:
The Courts allow for either party to seek a modification of child support. In 2010, the law changed such that, unless the parties agreed to “opt out”, the following conditions would trigger the availability of a child support modification:
Three years have passed since the order was entered, last modified or adjusted; or
There has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A reduction in income shall not be considered as a ground for modification unless it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.
Additionally, a parent, at any time, can petition the Court for a modification of child support based upon a showing of a substantial change in circumstances. Whether a substantial change in circumstances exists is determined by the Court on a case-by-case basis and is fact-dependent.