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Friday, February 25, 2022

How to Win a Custody Modification Case

  During a divorce, a judge awards custody based on what they perceive to be the best interests of the child at that time. But what if circumstances change and the custody order is no longer best for the child? In that case, you can ask for custody modification.

Requesting custody modification can be an uphill battle, so you want an experienced custody lawyer on your side. At the Gilmer Law Firm, PLLC, we help parents fight for their children.

Attorney George Gilmer has experience arguing before the toughest judges. He even argued before Supreme Court Justice Sonia Sotomayor when she was on the United States Court of Appeals. George will use his experience to advocate for you and your child. Here, we’ll explain factors that affect how to win a custody modification case.

What Is New York Custody Law?

New York law recognizes two types of custody—physical and legal—determining each based on the best interests of the child.

Physical Custody

The parent who has physical custody lives with the child most of the time. The parent who does not have physical custody has visitation rights. Sometimes, a court will award joint physical custody, meaning that the child splits time between both parents’ homes.

Legal Custody

The parent who has legal custody of the child makes most of the decisions for the child, such as where the child goes to school, whether and where they attend religious services, and what mental health services the child receives. When parents receive joint legal custody, they make these decisions together.

When Can You Modify Custody?

The court doesn’t want parents frivolously challenging custody orders. To request custody modification, you must show that there has been a substantial change in circumstances that affect the child’s best interests. A substantial change in circumstances could occur in these situations:

  • A parent is drinking excessively or using illegal drugs;
  • Abuse, neglect, or domestic violence occurs in the home;
  • A parent is suffering a mental health crisis or serious illness;
  • The child was diagnosed with a serious illness or mental health disorder;
  • One parent interferes with the other’s scheduled time with the child;
  • A parent is moving to another city or state;
  • A parent is moving in with someone or getting married; or
  • A parent was charged with a crime.

Some of these situations require immediate action, such as behaviors that endanger your child. Other situations allow you to proceed more slowly, gathering evidence to back your claim for modification. When thinking about how to win a custody case, speak to a family law attorney to receive advice on the best approach for your situation.

What Does the Court Consider?

Like it did in the original custody order, the court determines custody modification based on the best interests of the child. To determine this interest, the court considers the following factors:

  • The child’s relationship with both parents;
  • The current custody order;
  • The home environments of both parents;
  • Where siblings and half-siblings live; 
  • Each parent’s finances;
  • Each parent’s physical and mental health;
  • Educational opportunities available with each parent;
  • Substance abuse;
  • Domestic violence, child abuse, or neglect; and
  • The child’s ties to their community, including school, friends, and extended family.

After evaluating these factors and weighing the evidence presented to support modification, the court will decide whether modifying child custody orders is in the best interest of the child.

Does the Child’s Preference Matter?

The judge will consider the child’s preference, but the child does not have the ultimate right to choose custody. Children’s preferences are sometimes ignored if the court feels they go against the child’s best interests. The court gives more weight to the custody preferences of older children, especially the opinions of teens.

What Evidence Do You Need?

When you are presenting a case for child custody modification, you need evidence to back your claim. For instance, if you claim that your ex is drinking excessively, you must be able to prove this allegation. No matter your reason for seeking custody modification, the following evidence can be helpful:

  • Witness statements;
  • Medical records;
  • Police reports;
  • Photos and videos;
  • Emails, texts, and voice messages; and
  • Dates and notes recorded in a journal.

If your child is not in danger, taking your time to gather substantial evidence can give you the best chance at persuading the judge to modify custody.

What Are Alternative Custody Modification Options?

A lawyer can help you consider out-of-court options for modifying child custody. For instance, some parents negotiate a settlement agreement, through mediation or using attorneys, that changes custody. You then present this settlement to the court for approval. Staying out of court usually lessens the stress of a custody dispute and saves you money on legal fees.

Another option to keep custody matters out of court is to hire a private arbitrator to decide your custody modification. This is a helpful option when the case reveals sensitive information or you are a public figure who wants proceedings to stay private. The case proceeds similarly to public court, except all information is kept private, shielding you and your children from public scrutiny. A private arbitrator’s custody decision is usually binding and enforceable, just like it would be in public court.

Contact an Experienced Custody Modification Attorney

When you consider modifying child custody, you should speak to an experienced attorney right away. An attorney can advise you on whether to take immediate action or wait to gather evidence to support your petition. Also, your attorney can assist you with evaluating alternate strategies for pursuing child custody modification.

At Gilmer Law Firm, we help parents who are fighting for the best interest of their children. Attorney George Mark Gilmer has twenty years of experience helping families navigate child custody disputes. While he can’t guarantee a positive outcome for every case, he’ll give you honest advice on how to win a custody battle. Contact him for a free consultation to learn more about child custody modification options.

 


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