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Final, But Not Necessarily Permanent – Modifying a Custody Order

A party seeking to modify a prior order of custody must demonstrate sufficient change in circumstances to warrant an alteration of the existing custody arrangement, and that such alteration is in the child’s best interest.  Only when a substantial change in circumstances has been successfully established may the court proceed with a best interest analysis.[1] Interference with visitation has been found to be sufficient to warrant a change in custody, but only if such change is in the best interests of the child given the totality of circumstances.[2]  In a 1996 Second Department case, the father successfully petitioned the court for the transfer of his daughter from mother, who had custody pursuant to an agreement of the parties, where the evidence showed that the mother persisted in denying parenting time to father and brother.  At one point mother withheld parenting time for six months. The court found that these circumstances were traumatic and harmful to the girl and changed custody.[3]  The relocation of the custodial parent, if not contemplated by the parties’ custody agreement is generally considered by the courts to be a sufficient change in circumstances to trigger a best interest hearing.[4] Relocation cases have their own set of guidelines which include:

  1. Each parent’s reasons for seeking or opposing the move.
  2. The quality of the relationships between the child and the custodial and non-custodial parents.
  3. The impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent.
  4. The degree to which the custodial parents’ and the child’s life may be enhanced economically, emotionally and educationally by the move.
  5. The feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements.[5]

Convincing a court to modify an existing custodial arrangement is a challenging task as it is usually considered to be in the child’s best interest to avoid changing custody from one parent to another if possible.[6] While it is required to prove a change in circumstances to re-visit the question of best interests in a custody determination, the change need not, by itself, establish grounds for the change in custody or visitation, but need only be sufficient to induce the court to look at the totality of circumstances since the prior award. Can the mere passage of time be sufficient to trigger a best interest inquiry?  Apparently so under the right set of circumstances.[7]  A Nassau County Court found that the mother’s repeated unfounded CPS allegations against the father were, as father claimed, designed to alienate him from his child.  Mother’s poor judgment and potentially permanent emotional damage to the child caused by repeated invasive examinations was a change in circumstances and a valid reason to change custody from mother to father.[8]

In the landmark case of Eschbach v Eschbach, [9], the Court of Appeals modified the Supreme Court decision which granted the father custody of two of his girls who had been in mother’s custody pursuant to a separation agreement which was incorporated by reference into the divorce judgment.  In this case, the two older girls had expressed a strong preference to live with their father.  The youngest child did not express the same preference, but did make clear her strong desire to remain with her sisters.  Evidence at trial included the testimony of the two older girls, both parents and certain school representatives.  Additionally, a report was prepared by a probation officer who interviewed the parties.  The youngest child was interviewed in camera.  In its decision, the court reminds us that “no agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child’s best interests.”[10]  A prior agreement therefore, while entitled to great weight, is not determinative, but is one factor to be considered.

The expressed wishes of a child of sufficient age and discretion as to custody are a factor to be considered by the court.[11]  In overturning the lower court decision, the Appellate Division in Kulakowich v Zingarelli[12]mentioned the fact that the child “now fifteen years old,” indicated a clear and strong desire to remain with his mother.  It also noted the fact that the mother was a fit custodial parent.  What result would occur if the mother was the less fit parent and the child had a clear and strong desire to remain with her?  Is fifteen the magic age at which the wishes of a child move to the top of the custodial factors to be considered by the court?  The answer is “not necessarily.”  The wishes of a fifteen-year-old are nevertheless weighty and relevant.  More relevant perhaps is the question, “which parent can best provide for the intellectual, psychological, emotional and financial welfare of the child.?” Therefore, a child’s wishes are not controlling and will not bar the court from making a contrary determination if such determination serves the child’s best interest.[13]  The court must keep in mind that the expressed wishes of young children can be distorted by a manipulative parent.  In such cases, the court must look beyond those expressed desires and consider the long term best interests of that child.[14]  Despite the court’s right to override the wishes of the child, it has been held in the second department to be reversible error not to at least ascertain those wishes.[15]

It is often stated that there are no absolutes in making custody determinations.  The court’s unchanging mandate is to determine what is in the best interest of the child, and what will best promote its welfare and happiness.[16]

[1] Griffin v Griffin, (3d Dept. 2005) 18 AD 3d 998, 795 N.Y.S.2d 367
[2] Brown v White, (3d Dept. 2004) 3 AD3d 743, 770 N.Y.S.2d 809
[3] Santoro v Santoro, (2nd Dept. 1996) 224 AD2d 510, 638 N.Y.S.2d 478
[4] Smoczkiewicz v Smoczkiewicz, (2d Dept. 2003) 2AD3d 705, 770 N.Y.S.2d 101
[5] Tropea v Tropea, 1996 87 NY2d 727, 642 N.Y.S.2d 575, 665 NE2d 145
[6] DeFrancisco v MacNary, (3d Dept. 1980) 74AD 2d, 966, 425 N.Y.S. 2d 885
[7] Larissa F. v Michaels S., 1983, 120 Misc. 2d 907, 466 N.Y.S.2d 899
[8] Matter of P.D. v T.A.G., 9/7/12 N.Y.L.J. 1202570225090 at 1 (Family Court, Nassau County, J. Bennett)
[9] Eschbach v Eschbach, 56 NY2d 167, 436 N.E. 2d 1260 Ct. of Appeals 1982
[10] Friederwitzer v Friederwitzer, 55 NY2d 89; also see People ex rel. Wasserberger v Wasserberger, 42AD2d 93, 95 affirmed on opinion below 34 NY2d 660
[11] Bullotta v Bullotta, (2nd Dept. 1974) 43 AD2d 847, 351 N,Y,S.2d 704
[12] Kulakowich v Zingarelli, 249 AD2d 306, 670 N.Y.S.2d 355 1998, Second Dept.
[13] Ebert v Ebert, 37 NY2d 700, 382 N.Y.S.2d 472, 346 N.E.2d 240 (1976)
[14] Matter of Nehra v Uhlar, 43 NY2d 242, 401 N.Y.S.2d 168, 372, N.E.2d 4 (1977)
[15] Bullotta v Bullotta, supra
[16] Domestic Relations Law §70

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