Are There Dangers To Petitioning For A Change Of Custody In New York? Could I End Up With An Agreement That Is More Unfavorable For Me Than The Original Agreement?

If one parent petitions for a custody modification, the other parent is may also cross-petition and ask for changes which benefit them. The court can consider both petitions but one cannot end up worse off than they began on their own application (unless the Judge grants the cross-petition). For example, if a custodial parent files a petition to change some aspect of decision-making, the Judge cannot decide to switch physical custody of the child to the other parent in the absence of a cross-petition from the other parent. If the petitioning parent has not satisfied their case, the only remedy of the Judge is to dismiss their application. If there is a wide disparity of income, the more-monied parent could also sustain an award of counsel fees to the less-monied parent.

Can One Parent Challenge The Petition To Modify A Custody Order In New York? What Evidence Would Help Challenge The Other Parent’s Petition?

If a parent wants to allege that there is abuse or neglect going on, for example, then they have to show actual evidence of same. For example, a doctor would have to make a report of abuse or neglect. Children can also make disclosures to teachers, guidance counselors, or therapists and you can bring that into the case as evidence.

Is It Always Necessary To Have A New York Family Law Attorney Experienced In Handling Custody Modifications To Handle My Case?

While an attorney is not always necessary, it is almost always beneficial. One could, in theory, handle their own case but, as the old adage says, one who represents himself has a fool for a client. If the other side has an attorney, you definitely want an attorney on your side. In New York State, if you cannot afford an attorney, you would qualify for court-assigned counsel. There is almost no excuse to be unrepresented on such an important issue. Ultimately, if you are assigned an attorney that you are not pleased with, you’re always free to go out and hire your own attorney.

Can A Modification To A Child Custody Or Visitation Order, Which Is Granted By The Court, Ever Be Challenged By The Other Party? What Are Grounds For Appeal?

Just because one parent files a custody modification application does not mean the other parent cannot challenge the basis under which they are asking for the modification. As a general rule, the court would need to hold a hearing or trial before making a determination. There are some exceptions to this general rule, but that is certainly the preference before making any kind of important change – especially an access change or switching custody from one parent to another.

Either parent who disagrees with the Judge’s determination can file an appeal. There is no legal standard they must satisfy before they file the appeal – if one disagrees with the Judge’s determination, one simply files a “notice of appeal.” Whether the appellate court steps rules in their favor a completely different matter. The usual standard is whether the appellate court believes the trial court has committed an “abuse of discretion.” Trial Judges have a wide latitude of discretion in making determinations on custody. However, 20-30% of appeals are satisfied – meaning the appellate court either reverses the trial court or determines there are some issues which need clarification (and thus send the case back to the trial court for a further hearing).

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