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A child custody order issued by a family court judge is binding. This means that any modification can only be approved by the courts. There are several circumstances that may necessitate modification of child custody or visitation rights. A lot can change after a divorce. Matters such as education and medical treatment can pose challenges under the current order. You can also feel that the best interests of the child are not well served by the existing arrangement. If you, believe that you have grounds to petition for a custody modification, then it wise to consult with a child custody modification lawyer.
The process of modification
When you file a petition for modification, you need to demonstrate to the court that there has been a substantial change of circumstances to warrant a modification. This is the first threshold that must be met. The purpose of this is to weed out disgruntled parents who may simply want to modify the agreement because they are angry at the other party, or in an effort to harass the other parent. A child custody hearing is not automatically granted before establishing good grounds.
What is considered as a substantial change of circumstances?
• One parent wants to move away, or a non-custodial parent is moving closer.
• The child wishes to spend more time or live with the non-custodial parent.
• The parent with more custody rights is unreliable, abusive or neglectful.
• The work schedule of either of the parents has changed significantly.
The second part of the process is for the courts to determine best interests of the child. While proving a change of circumstance is essential, the judge must establish how the changes affect the best interests of the child. In New York, for example, the following factors are considered when establishing best interests.
• The stability of the child.
• A conducive home environment.
• The fitness of the parents in raising the child.
• The willingness of the parents to maintain a healthy relationship for the sake of the child.
Why do I need to go to court for a modification?
If former spouses are co-parenting amicably, then there is always the temptation to work out new custody agreements outside of court. While the law does not stop you from doing this, an informal arrangement can create complications in future. First, you need to remember that the court cannot enforce an informal agreement. In case you develop issues along the way, the courts will revert to the original order. It is very possible for the other party to decide that they will not honor the new arrangement you made. By law, they are justified to do this. It is advisable to have any amendments legally modified. A change of heart on the other party can cause problems that can be avoided if you follow the court process. A court process is the surest way to protect your rights legally. This way, the courts will fully back you if the other party does not honor their end of the deal.
How can a lawyer help in a child custody modification?
As discussed, the courts cannot simply grant a modification without good reasons. It is wise to consult with a lawyer to seek advice on whether your circumstances warrant a court modification. The expertise of a lawyer can also prove helpful in drafting a new agreement. It is possible to overlook certain changes that may happen in the future. Child custody lawyers have dealt with many issues, and they understand the pitfalls and issues that can easily be omitted. In addition to this, the petition for modification must be filed in court, and the lawyer can help you do it right.
Child custody determinations can be modified upon a showing of a substantial change in circumstances from the time the previous custody order was entered. What a court considers to be a substantial change in circumstances depends on the circumstances of each case. Ultimately, a court will consider a variety of factors to determine if the custody determination should be modified.
What needs to be shown to modify a child custody order?
The party requesting modification of a child custody order has the burden to prove a substantial change in circumstances. This change must be some fact or set of facts that has arisen since the time the original child custody order was entered. Some examples of facts that may constitute a substantial change in circumstances include:
- Relocation of one of the parents
- Special needs of the children
- criminal activity from one of the parents
- Substance abuse
- Change in employment or financial situation
- Domestic violence
- Mental instability
- Child abuse or neglect
What a court considers to be a change in circumstances can be very broad. If you believe there are circumstances that may constitute a change in circumstances, then you should consult with NYC Child Custody Modification Lawyers who can assess your situation and help you determine whether a modification action is an option.
If a change in circumstances is shown, will a court automatically award the modification?
Even if a substantial change in circumstances is shown, the party requesting modification must also show that the modification serves the best interest of the children. In analyzing whether a modification is in the best interest of the children, the court considers several factors. These factors may include:
- Wishes of the parents as to custody
- Wishes of the children (if they are mature enough to state their wishes)
- Character and circumstances of the persons involved
- Need to promote stability and continuity
- Domestic violence issues, if any
- Any other factor that the courts deems as relevant
If you can show a change in circumstances and that the requested modification is in the best interest of the children, then the court may modify the child custody schedule.
What is the process for child custody modification?
To modify a child custody order, the party requesting modification must file a request with the court. This request must set forth the facts that constitute a substantial change in circumstances and must also set forth the custody schedule being requested.
After the written request is filed with the court, it must be served on the other parent. The other parent then has an opportunity to file a response to the request, stating what they agree and disagree with regard to the requested modification.
If the parents can agree on the modification, then the requested change can be entered into an order. If the parties cannot agree, then the parties may pursue other methods to facilitate resolution, such as mediation and settlement meetings. Ultimately, if the parents cannot agree, then the case proceeds to trial. At trial, each parent has the opportunity to present their arguments and evidence in support of their argument. A judge will then make a decision and announce the custody schedule.
- Testimony from witnesses
- Video and audio recordings
- Social media posts
- Text messages, emails and letters
- Reports from police and social services
- Opinions from child custody evaluators and experts
How can an attorney help?
NYC Child Custody Modification Lawyers cab assist by providing legal representation and advice during a modification action. An experienced child custody lawyer will understand what needs to be shown to successfully modify a child custody order. They will advocate for their client’s position and present the evidence in support of the case to the court.
A child custody modification lawyer will understand the laws and procedures that apply to the case. Some people unsuccessfully try to seek modification without the assistance of an attorney and become overwhelmed by the various rules and procedures.
If you are seeking modification of child custody order, contact us to schedule a consultation.
Even after the ink is dry on your divorce or your initial custody order, the court can still make changes to the custody order. A custody order doesn’t end until the children reach the age of majority. The courts don’t take custody modifications lightly. Even though it takes a great deal of evidence to convince the court to modify custody, a custody modification is both necessary and important under the right circumstances. An NYC child custody modification lawyer can help you bring a motion to modify custody.
Looking for a substantial change
The general rule is that the courts believe that children benefit from routine and stability. In order to make large changes to the children’s custody situation, the court looks for a significant change in the circumstances surrounding the children. An example of a substantial change may be when a parent develops a substance abuse problem. A significant change in circumstances may occur when a parent or someone in the parent’s home receives a domestic violence conviction.
It’s up to the person wanting the change in custody to demonstrate the change in circumstances. The court may require you to show this proof before they hold a hearing on whether to change custody. If the court agrees that a change in circumstances has occurred, they’ll decide whether it’s in the children’s best interests to change custody.
Minor difficulties in a child’s life typically don’t qualify as a change in circumstances. For example, the court won’t likely consider a change in custody for one semester of slightly lower grades or a detention or two in school. Even minor changes in a child’s health typically aren’t enough to make big changes in a custody order.
The best interests of the child
If the court agrees that there has been a change in circumstances, the court reviews the best interests of the child. If it’s best for the child to change custody, the court orders the change. In most cases, both parents still have some type of contact with the child. However, the court may fashion a new custody and parenting time order that the court believes is best for the child. The court looks at the totality of the circumstances in order to make its determination.
What’s the best interests of the child standard?
New York law doesn’t explicitly define the best interests of the child. Instead, it’s up to the court to determine how to evaluate the best interests of the child. The court looks at any of the following factors:
- Which parent has provided more direct care for the child up until now
- The child’s bond with each parent
- Parenting skills of the parents
- Domestic violence in either home
- Mental health of the parties
- Physical health of the parties
- Whether a parent needs child care
- The work schedule of each parent
- Each parent’s willingness to work with the other parent
- A child’s preference, if they’re old enough to express it
The court doesn’t consider these factors to be a checklist. One fact or circumstance might weigh heavily to determine the outcome of the request for modification of custody. In another case, the court might look at a wide variety of evidence when making a determination regarding an NYC child custody modification petition. An NYC child custody modification lawyer can help you determine what evidence you should prepare to present to the court.
Building your case
A court decides a motion to modify custody based on the evidence in front of it. That makes it up to you to determine what evidence to gather and present to the court. You must gather evidence to demonstrate that the circumstances have changed. The evidence may be a criminal conviction, copies of communication between the parties or school records. You may need to ask the court for a psychological evaluation of the other spouse. Evidence may include witness testimony. A team of experienced NYC child custody modification lawyers can help you gather the best evidence for your case.
How we can help
If you believe a modification of custody may be appropriate in your case, our team of NYC child custody modification lawyers can help you determine your best steps. We can help you understand whether your motion is likely to succeed and what you can do in order to improve your case. We can help you understand the pros and cons of each way you might proceed in the case. Together, we work to help you achieve the best outcome for you, for your children and for your children’s future.