Ultimate Guide To Winning A New York Custody Modification Case

client meeting with custody lawyer

Custody modification cases in New York involve complex legal proceedings that require a thorough understanding of the relevant laws and procedures. This comprehensive guide aims to assist litigants and attorneys by providing an in-depth discussion on how to navigate a custody modification case effectively. Specifically, we will delve into the concept of substantial change of circumstances and the two-stage trial approach is sometimes used by New York courts. By exploring these topics, we aim to clarify the legal framework and equip you with valuable insights to pursue a successful custody modification case.

This article discusses the issue of custody modification cases only in the New York Courts. Laws may and often do differ in different states. It also does not discuss modification cases involving parents against non-parents, where different legal standards and procedures apply.

I. Understanding Substantial Change of Circumstances:

In a custody modification case, which involves a parent against a parent, when one parent already has a custody order, establishing a substantial change of circumstances is a crucial element. New York law requires that there be a significant change in circumstances to warrant a modification of an existing custody order. The term “substantial change of circumstances” refers to events or situations that significantly impact the child’s welfare and necessitate a reevaluation of the existing custody arrangement.

A. Factors Considered for Substantial Change of Circumstances:

  1. Parental Unfitness: Evidence of a parent’s unfitness due to factors such as abuse, neglect, substance abuse, or mental illness may constitute a substantial change of circumstances.
  2. Relocation: If a custodial parent plans to relocate, resulting in a substantial impact on the child’s relationship with the noncustodial parent, it may be considered a substantial change of circumstances.
  3. Drastic Changes in Lifestyle: Significant alterations in a parent’s life, such as new relationships, job changes, or living conditions, that affect the child’s well-being can be deemed a substantial change of circumstances.
  4. Violation of Existing Orders: Persistent and willful violations of the existing custody order by one parent may be grounds for a modification.
  5. Although not all lawyers or even all jurists know this, in order to transfer custody after there has already been a custody order to one parent, it is not sufficient for the non-custodial parent to show that his or hers situation has improved since the date of the custody lawyer. Instead, the non-custodial parent will have to prove that either the other parent’s situation has changed for the worse, or that the custodial parent has not been able to maintain a positive relationship with the child or children.

B. Important Statutes and Reported Cases:

  1. New York Domestic Relations Law (DRL) Section 240: This statute outlines the guidelines for child custody and modification in New York.
  2. Tropea v. Tropea: The landmark case of Tropea v. Tropea (87 N.Y.2d 727) discusses the standardsa nd factors that courts must consider and weigh in relocation cases.

II. Two-Stage Trial Approach: Establishing Change of Circumstances and Best Interests:

A. Stage 1: Substantial Change of Circumstances:

In a custody modification case, the court may bifurcate the trial into two stages. The first stage focuses on determining whether there has been a substantial change of circumstances. To establish this, the petitioner (the party seeking the modification) must present compelling evidence to demonstrate that a significant change has occurred, affecting the child’s welfare and necessitating a reassessment of the custody arrangement.

Although the bifurcated method seems to me to be preferable, some courts do not bifurcate and try both issues simultaneously.

Evidence that may be considered in stage 1 includes:

  • Testimony from witnesses, such as teachers, therapists, or medical professionals, regarding the child’s well-being and any changes observed.
  • Documentation of any incidents, such as police reports or medical records, indicating a change in circumstances.
  • Records of a parent’s substance abuse, mental health issues, or criminal activity, if relevant to the child’s safety and well-being.
  • Any other relevant evidence, such as emails, text messages, or photographs, that support the claim of a substantial change of circumstances.

B. Stage 2: Best Interests of the Child:

If the court determines that there has been a substantial change of circumstances, the trial proceeds to the second stage, which focuses on determining the best interests of the child. However, you may wish to request that the Court include the testimony and evidence from the cchange of circumstances hearing, in order to avoid having to call the witnesses and submit the documentary evidence twice.

The best interests stage involves an examination of various factors to assess which custody arrangement would be most beneficial for the child’s overall well-being. Factors considered in determining the best interests of the child may include:

  1. Child’s Preference: The court may consider the child’s wishes, depending on their age, maturity, and ability to express their preferences.Thre is case law that the child’s wishes, standing alone, are not sufficient to establish a change of circumstances. However, it the child or children are 17 or even 16 years old the court can “punt” by delaying a decision until the child or children turns 18, and the wishes of mature teen agers will typically be given a lot of weight.
  2. Parent-Child Relationship: The court will assess the nature and quality of the child’s relationship with each parent, including factors such as emotional bond, communication, and support.
  3. Stability and Continuity: The court will consider the child’s need for stability and continuity in their living arrangements, school, and community.
  4. Parental Fitness: Each parent’s ability to provide a safe and nurturing environment, including factors such as physical and mental health, parenting skills, and willingness to facilitate the child’s relationship with the other parent.
  5. Siblings and Extended Family: The court may take into account the importance of maintaining sibling relationships and connections with extended family members.
  6. Child’s Well-being: The child’s physical, emotional, and educational needs will be considered, along with any special requirements or considerations.
  7. Domestic Violence or Abuse: If there is a history of domestic violence or abuse, the court will prioritize the safety and well-being of the child and may take appropriate protective measures. Although the Court has almost absolute discretion as to which factors it will consider, it is mandated by statute to consider domestic violence issues.

C. . Important Statutes and Reported Cases:

  1. New York Domestic Relations Law (DRL) Section 236: This statute outlines the factors considered in determining the best interests of the child in custody matters.
  2. Eschbach v. Eschbach: The case of Eschbach v. Eschbach (56 N.Y.2d 167) established the principle that the best interests of the child should be the primary consideration in custody modification cases.

III. Strategies and Tips for a Successful Custody Modification Case:

A. Gather Strong Evidence: Collect relevant and compelling evidence that supports your claim for a substantial change of circumstances or the child’s best interests. This may include documents, witness testimonies, photographs, school records, and other pertinent information.

B. Consult an Experienced Attorney: Seek guidance from a knowledgeable family law attorney with expertise in custody modification cases. They can provide invaluable advice, develop effective legal strategies, and navigate the complexities of the legal process.

C. Prepare Thoroughly: Organize your case meticulously by reviewing relevant statutes, reported cases, and court rules. Develop a clear and concise presentation of your arguments, ensuring they align with the applicable legal standards.

D. Present a Coherent Narrative: Craft a compelling story that demonstrates the substantial change of circumstances or the child’s best interests. Present your evidence and arguments in a logical, persuasive manner that resonates with the judge.

E. Consider Mediation and Settlement Options: Explore alternative dispute resolution methods, such as mediation, to potentially reach a mutually satisfactory agreement. Collaboration and compromise can often lead to more favorable outcomes while reducing the emotional and financial costs of litigation.

F. Maintain Professional Conduct: Adhere to professional conduct and ethics throughout the process. Respectful and cooperative behavior can positively impact the court’s perception of your case and may help facilitate a resolution.

G. Consider having a forensic evaluation. especially if you suspect that the court will do a bifurcated trial and your case is weak on the issue of change of circumstances, but strong on best interests. The forensic evaluator’s report will typically not be bifurcated, and it will be difficult for the court to ignore the expert’s recommendations.

IV. Visitation Cases

A party who wishes to change a visitation order may also have to show a change of circumstances, although Courts are typically more liberal in finding that a sufficient change of circumstances has occurred. There is case law, which is sometimes ignored, that just the child ‘s getting older is not, standing alone, sufficient change of circumstances to allow modification of the order. Usually, courts are more willing to allow modifications when the original order was limited by the fact that the child was an infant or toddler. In these situations, I have found that most courts are quite liberal about expanding visits. On the other hand, there was one Family Court judge who refused to modity a visitation order even though both parties consented, because she did not believe there was a change in circumstances.

Successfully trying a custody modification case in New York requires a thorough understanding of the legal principles surrounding substantial change of circumstances and the best interests of the child. By familiarizing yourself with the relevant statutes, reported cases, and procedural nuances, you can navigate the complexities of the legal process more effectively. Remember to consult an experienced family law attorney who can provide tailored advice and develop strategies to support your case. With proper preparation, strong evidence, and a compelling narrative, you can increase your chances of obtaining a favorable outcome for your client or yourself in a custody modification case.