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Sunday, June 15, 2014

Requests for New York Child Custody Modifications Must be Convincing

Family court judges aren't apt to create a disruption in the lives of children by altering the child custody agreement unless it can be proven that there is a good reason for it.

Brooklyn child custody modification lawyers know that in order to alter a previously-established parenting arrangement, the moving party needs to show there has been a material change in circumstances. He or she must also show why a modification is in the best interests of the child.

Courts will generally strive to place children in a joint physical custody arrangement, wherein both parents share equally (or at least equitably) in parenting time. However, sometimes that is simply not possible, particularly if one or both parents is moving out of the area.

A move would be considered a "material change," but whether it is in the best interests of the child to stay or go will be up to the court, regardless of who held primary custody originally.

This was the issue at hand in the recent case of Schroeder v. Schroeder, reviewed by the North Dakota Supreme Court.

According to court records, the pair married in 1999 and had two children, one in 2000 and another in 2002. Five years after the birth of their second child, the pair sought a divorce. According to the original custody agreement, they were awarded joint legal and physical custody of the children.

Two years later, the mother moved out-of-state, and sought to obtain primary physical custody of the children. The father opposed the motion, and subsequently filed his own, requesting primary residential custody. Each indicated there had been a material change in circumstances requiring an alteration of the earlier custody agreement.

The district court sided in favor of the father.

Another two years passed. The mother informed the father that the following year, she intended to move to  yet another state. Around the same time of her move, the father moved to Florida, with both the children. He dropped the children off with their mother in her new home state for their summer parenting time. While the children were in her care, she filed a motion to amend judgment, again requesting primary physical custody. The father opposed.

In August of that year, the father moved for an order to show cause why the other shouldn't be held in contempt when she failed to return the children to him in Florida following the conclusion of their summer visit. In September, the court denied the mother's motion, reasoning there had been a material change in circumstance, but she failed to establish that her request was in the best interest of the children. The court further ordered her to return the children to their father in Florida.

The mother appealed, saying the district court erred in failing to fully consider her arguments. The state supreme court addressed them one-by-one.

In the first argument, she contended the father "has expressed in correspondence" to both her and the kids his intention to infringe upon and restrict her parenting time. However, she did not submit to the court any copies of such correspondence, and neither did she provide affidavits by either child that supported this allegation.

Secondly, she indicated the children were distraught about their move to Florida, saying they'd had little time to say goodbye to friends, teachers and family members. The court didn't doubt  her firsthand accounts of this, but said the allegation ignores that the children would have had to relocate regardless, whether they lived with her or their father.

Thirdly, she argued the children had a tough time being separated from their half-siblings. Again, the court indicated they would be separated regardless of which parent was awarded custody.

Fourth, she asserted that her older child preferred to stay with her. While the preference of a mature child is generally weighted by the court, the mother provided no affidavit from the child to back this assertion.

Fifth, she indicated that the schools in her new home state were superior to those in Florida, and could better meet the needs of the children, one of whom was developmentally disabled. However, she failed to provide any information to the court to prove this.

Finally, she alleged that the children would be living with their paternal grandfather, whom she claimed routinely threw large parties with copious amounts of alcohol. However, the father denied he and the children would be living with his father, and further, contended his ex-wife hadn't provided any proof of her allegations.

Based on all this, the court indicated that while a move by both parents was considered a material change in circumstance, the mother failed to prove that staying with her would be better for the children.

If you are contemplating a Brooklyn child custody change, call our offices at (718) 864-2011.

Additional Resources:

Schroeder v. Schroeder, May 2014, North Dakota Supreme Court

More Blog Entries:

Davidson v. Carillo - Importance of Attorney Representation in Brooklyn Child Custody Matters, May 30, 2014, Brooklyn Child Custody Lawyer Blog


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