Motion to Modify Custody and Visitation Order in New York

A parent who feels that their current custody or visitation arrangement no longer works for their situation may certainly seek to modify their existing custody or visitation order. One way is to agree on changes with the other parent of their child.

If the parents can agree about custody of the child, a judge allows them to put their agreement into the record in open court and then enters what is called “an order of custody on consent.” No formal court hearing needs to be held.

However, if an agreement is not possible, a parent then needs to file a petition with a court seeking modification of the existing order. A parent might benefit from a legal consultation regarding whether they would qualify for a modification of custody and visitation.

Courts make child custody decisions according to the child’s best interest standard. This means that after taking all of the relevant factors into consideration, a court decides on a custody arrangement that serves the best interest of the child. The same rule applies to child custody modifications. The child’s best interest standard is applied by a court.

The parent who wants to change an existing child custody and visitation arrangement must have a valid reason for the change. A court wants to see that there has been a “substantial change of circumstances,” one that affects the best interests of the child. A local attorney in New York would be able to explain more about the reasons for which a court would modify custody or visitation and the child’s best interest standard.

Among the changes in circumstances that may justify a change in an existing order are the following:

• The child has suffered abuse or neglect.
• Domestic abuse has taken place in the home.
• The custodial parent has moved in with a new partner.
• One of the parents wants to move to a different state.
• The custodial parent cannot maintain a safe and stable environment for the child in their home.
• A parent has been charged with a serious crime.
• A parent has a substance abuse problem or a serious illness.
• A parent interferes with the rights of the other parent, e.g., their right to visitation.
• A parent has returned from active military deployment or moved closer to the custodial parent, and this has made more frequent visits possible.

When Can You Modify a Custody or Visitation Order?

Again, in New York, a modification of child custody or visitation would be granted when there has been a substantial change in the circumstances of either the child or their parents. So, the time to ask for modification of a custody and visitation order is when there has been a significant change in the lives of one of the parties.

This might be when one parent decides they want to move to another state for a job opportunity, or a parent suffers a disability that affects their employment and their income. Or the child may start to live with the non-custodial parent.

It is important to note that a court would not change a child custody order for the sole reason that one parent does not like the existing custody and visitation arrangement. A parent who wants a change must prove to the satisfaction of the court that there has been a substantial change in the circumstances of either the parent or the child.

The change must be one that would justify making a modification. A judge must determine that changing the order would be in the best interests of the child.

How Can I File a Petition for Modification of a Child Custody or Visitation Order?

A person can begin the process of asking for a change in a custody order by completing the forms for a “Petition for Modification of an Order of Custody/Visitation.” This “Petition for Modification of an Order of Custody/Visitation” can be filed online with the court via the New York courts website.

Or a parent may file the form with the clerk of the court in the county or borough where the child lives. If the existing custody and visitation order is from a court in another state and any parent still lives in that state, then a petition must be filed in that state.

Some people may find the forms to be complicated, and it must be notarized before it is filed with the court. In addition, a copy must be delivered to the parent who has custody of the child at the time. A parent may want the advice and help of a New York custody lawyer.

Once the petition has been filed with the right court, the clerk schedules a date for a court hearing regarding the request. The two parents involved would have an opportunity to settle the case by coming to an agreement regarding the issues that are satisfactory to both of them.

If the case is not settled, then a court hearing must go forward. Both parents and any other individual who may have custody has a right to be represented by an attorney. The attorney would be appointed and paid for by the court if they cannot afford to hire an attorney on their own.

At the hearing, the parent who wants to change the order must produce evidence to support their request. This may include their own testimony as to the nature of the change in circumstances that they have experienced.

They may have other witnesses testify as well. They might also produce documents, such as their work schedule or medical records, regarding treatment for an injury they have suffered and how it would affect their ability to care for their child.

It is important to keep in mind that a court always weighs the change in circumstances and the proposed new custody arrangement in light of the best interests of the child. So, in addition to the evidence that a parent provides, the court also considers other factors.

These would include the child’s relationship with each parent, each parent’s ability to care for the child, and any history of abuse or neglect. New York courts must take any domestic violence into account if either parent raises the issue.

What Are Temporary Child Custody Modifications?

If a person has taken up residence in New York state only very recently and it is not the state in which the child resides, they may still seek temporary emergency custody in New York if the following are true:

• The child is present in New York state; and
  • The child has been abandoned; or
  • There is an emergency situation because the child, a sibling, or one of the child’s parents has been threatened with mistreatment or abuse, or a sibling or parent threatens to perpetrate abuse or mistreatment on the child.

Another situation in which a court may order temporary custody is when the parents are engaged in the process of determining custody. If the child resides in New York and a custody hearing involving the parents is in progress, a court may issue temporary custody orders until the case is resolved after a trial or the parents settle the issue thereby allowing a final order to be issued.

These orders regarding temporary custody may be modified if necessary.

Do I Need a Lawyer To Modify a Child Custody or Visitation Order?

If your custody and visitation plan needs to change because your life circumstances have changed, you want to consult a New York child custody lawyer. LegalMatch.com can put you in touch with an experienced lawyer who knows New York state’s child custody law. Your lawyer will analyze your case and be able to tell you whether you might win modification and then guide you through the process to get the adjustment you need.