Child custody modification petitions are almost as common as initial petitions. Over time, things tend to change for a variety of reasons. A lot of times, people establish custody when the children are relatively young. Then, as the children age or different circumstances happen, they need to modify custody or visitation. Unfortunately, some people can never solve their initial conflicts. They just fester over time and one parent or the other petitions for sole custody.
What Two Factors Must Be Present In Order For The Court To Grant A Modification To A Child Custody Order In New York?
The first factor the court needs to consider is whether there has been a change of circumstances since the last order was set. The second factor the petition needs to state is why the requested change is in the best interests of the child or children. The issue will be how they go about presenting the evidence that would match up to the best interests of the children.
How Is A Substantial Change Of Circumstances Affecting The Welfare Of The Child Defined Under New York State Law?
The statute does not define a substantial change of circumstances or what constitutes “best interests.” Instead, it is very much case law driven and it goes back to the original custody determination factors (https://www.blivenlaw.net/child-custody/). Among other things, the court is going to look at why you are petitioning for a change. Maybe one parent is moving far away, such that it would affect the other parent’s access time. Perhaps one parent has withheld access from the other parent or has not properly cared for the children. It goes back to all of the same factors that are considered in an original custody determination and adds which factors have now changed.
What Is The Best Interest Of The Child As It Relates To Consideration To Grant A Modification Of Child Custody Petition In New York?
The best interest of the child or children is not statutorily driven; it is case law driven and the consideration is based on the custody factors. Among those custody factors is the age and preferences of the children, whether there is the existence of child abuse or neglect, whether there is interference with the relationship of either parent, the quality of housing, and the financial circumstances of each parent. One major factor is willingness to encourage a relationship with the other parent. One aspect of that is withholding access; another aspect is the non-custodial parent speaking badly about the custodial parent to the children. Perhaps that needs to be considered by the court in restricting some kind of access with the non-custodial parent, if they do not stop such behavior.
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