“Are Non-Violent or Severe Family Order Violations Enough to Say a Change in Circumstances Has Happened to Modify Order?”

Q: “I saw on youtube a lawyer who said the violations of custody order can warrant a change in circumstances as the original order was not followed. Violations such as order says itinerary for trips outside the state must be provided at least 48hrs in advance or more. And the mother on multiple times, even with text reminders, emails, phone calls has sent it to me 1 day before, the day of, and more recently 1hr before flying away. Additionally the order states daily phone calls shall be initiated by parent the child is with between 7-8pm to insure the other parent is not bothering or calling excessively to communicate with child, providing further issues. However, over many months the mother has repeatedly called 1hr after, 2hrs after, and sometimes even later or not at all. Order says I must be put as emergency contact, found out mother for camp didn’t list me as emergency contact for out of state camp she sent son to.

A: “Violations – depending on the nature, severity & frequency – may indeed satisfy the standard of “substantial change of circumstances.” But that is a completely separate question from whether the court will then switch physical custody as a result. Even with a violation established, the court in most instances will need to conduct a best interests hearing in order to determine whether a switch of custody is warranted. Schedule a consult with a Westchester Family Law attorney for a full assessment.”