Modification of a child custody order in New York requires there be some sort of material or substantial change in circumstance since the previous order was issued. Our Brooklyn family law attorneys know failure to establish this will likely result in dismissal of the request, as was seen recently in the case of Macchio v. Macchio, an appeal of which was heard by the Supreme Court of the State of New York, Appellate Division, Second Department.
In this case, the mother and father separated in 2012. The pair initiated a separation agreement, which granted the mother residential custody of their children while the divorce action was pending. Once the divorce was finalized, the domestic relations court judge incorporated (but did not merge) the separation agreement into the divorce agreement, and the mother retained residential custody of the children.
Two weeks after that decision was reached, the father filed a motion to modify the separation agreement and award him primary residential custody of the children.
The court did not hold a hearing, but instead based its decision to deny the motion on the facts contained in the father's petition. In that petition, the court found the father failed to provide any evidence that there had been a material change in circumstances that would support a finding that it would be in the children's best interests to come live with him instead of their mother. While the original separation agreement was two-years-old at that point, the divorce agreement had been entered just two weeks prior. Therefore, barring some extreme circumstance, the father would have had a tough time proving a substantial change in circumstance.
The court denied his motion. Upon appeal, he argued the court erred because it failed to conduct a hearing. However, the appellate court found it was within the trial court's discretion not to hold a hearing in resolving this dispute, per the case law established in Connor v. Connor, among other cases.
While child custody and visitation modifications can be requests at any time, the better approach in a case like this would have been to challenge the separation agreement pertaining to child custody before the divorce settlement was finalized.
One example of what may constitute as a "substantial change in circumstance" for the purpose of child custody modification might be a geographical move of one parent (usually the parent who currently has custody). If that move would make it difficult or impossible for the non-custodial parent to maintain a meaningful relationship with the child, he or she might have grounds to request a modification.
Another example would be if there has been a change in lifestyle that might be considered harmful to the child. For instance, if the custodial parent takes a job working the night shift, resulting in a child being left alone at night, the other parent may request a custody modification.
Considerations for a change might also be made in instances where there has been a change in financial or household circumstances. If the custodial parent is no longer able to physically provide for the child, due to his or her own illness, a change might be warranted. Similarly, if the needs of the child have substantially changed, such that the custodial parent is unable or unwilling to meet those needs, the court may grant modification.
Brooklyn family law attorneys can be reached at (718) 864-2011.
Macchio v. Macchio, Aug. 13, 2014, Supreme Court of the State of New York, Appellate Division, Second Department
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