Many New Yorkers who have gone through the process of a divorce believe that the judge’s signature on the final judgment and decree is the end of the process and the end of a painful and stressful chapter in their lives. Of course, everyone’s life takes unexpected turns, and life after divorce is no exception.
Many divorced parents have discovered that the terms of their divorce decree, especially provisions affecting child custody and visitation, are no longer suitable because an unforeseen event requires modification of the order. A common question is how to modify an existing order for child custody.
The basics
The parent who desires a change in custody – and this may be either the custodial or the non-custodial parent – must obtain either the agreement of the other parent or the judge who has jurisdiction over the case.
In New York, a divorced parent who wants a modification of the child custody provisions must demonstrate the existence of a
“substantial change in circumstances” in the life of either parent or the child. A substantial change in circumstances can be a sudden illness or a disabling injury, a move to another city by either parent, or more malignant circumstances, such as heavy drug or alcohol use. The change need not be negative.
For example, one parent may have the opportunity for a better job and more income in another city.
The reasons for the requested change must be presented to the court in a motion to modify the existing order.
The motion process
The motion is a written statement of the reasons for granting the requested modification. The statement is presented to the court along with any evidence that supports the requested change.
Most judges will grant the parties an oral hearing before a decision is issued. The non-moving party will be granted an opportunity to respond to the motion with any countervailing evidence and arguments showing why the motion should not be granted.
The best interests of the child
As with most questions involving child custody in New York, the judge must evaluate the effect of the requested modification on the involved children. In making this determination, the judge must consider how the changes will affect the best interests of the child.
Factors that are commonly considered in determining the best interests of the child include The stability of the child’s environment, whether the custodial parent can make satisfactory child care arrangements, whether either parent abuses drugs or alcohol, the physical and mental health of both parents and the child, and whether there is any evidence of spousal or child abuse.
The child may contribute to the decision by expressing an opinion if the court determines that the child is old enough to express a reliable opinion.