Modification Petitions - Once Supreme or Family Court issues an order for child custody, child visitation or child support the terms may only be changed by filing a modification petition. A Supreme Court order, which would be included in the Judgment of Divorce, may be modified in Family Court as long as the Judgment grants the court "concurrent" jurisdiction (which most do). To modify a Supreme Court order there must be a showing of "unexpected and unforeseen change in circumstances". Unexpected and unforeseen means that there must be a change in child custody, child visitation or child support that was not anticipated, was not willful or voluntary and was a result of an unexpected event since the Judgment of Divorce was signed. To modify a Family Court order, however, there must be a showing of "substantial change in circumstances". A substantial change in circumstances showing includes proving that the other party is no longer the more "fit" parent in a child custody case, that the current visitation schedule is not suitable or adequate for either or both parents and thus affects the child in a child visitation case or that the financial circumstances of either parent has changed dramatically, due to no fault of their own in a child support case.

Modification of Child Custody/Child Support Orders:

Modification proceedings are difficult and require the skill of an experienced attorney. Particularly when an order was recently issued, was entered as a result of a trial or where the parties were represented by counsel at the time of issuance, the courts are not inclined to change the terms of the existing court order. The court requires the advantages of the change to greatly outweigh the advantages of stability of the current arrangement, in child custody cases. There are emergency situations which require less scrutiny than others, but generally a modification is not taken lightly.

For child support modification petitions (upward or downward), there must be a showing that underemployment or unemployment was not intentional or was not due to any deliberate act of the petitioning party, that there are additional needs of the child(ren) or that there is a change in the child custody or child visitation arrangements.

Relocation Petitions:

Relocation cases may be brought in Family Court when one parent wants to move out of the state. There is a similar test the courts will impose when the custodial parent wants to move out of state where custody has not been established, where there is joint custody with visitation or where there is sole custody but with a condition that the custodial parent remains within the state or its surrounding locales.

Modification of Another State's Child Custody/Child Visitation Order:

New York can only modify another state's order for child custody or child visitation if the child has been a resident for at least six months prior or has significant connections. In addition, pursuant to the UCCJEA the issuing state must determine that it no longer has jurisdiction or that New York is the more convenient forum or either New York or the issuing state have determined that all parties, including the child, have moved from that state. In emergency situations, New York may exercise temporary jurisdiction if the child is not a resident of New York or has lived in New York less than six months and has been abandoned in the state or one of the family members is in danger of abuse.

Contact our office to get a free phone consultation.