As a child grows, he or she develops different needs. An infant will need things that a teenager will not, and vice versa. So, as the child grows and matures, the parenting plan needs to grow and change with them.

When this happens, modifying the custody order is the next step.

How Does Custody Work in New York?

When the parents of a child have separated, they must decide who has custody of that child. This means that one or both parents or a guardian are responsible for the child’s care until that child reaches 18 years of age.

Ultimately, the court assigns custody based on whether that is in the child’s best interest. This means examining the situation and making a determination. However, if there is not an order of custody issued by the court, then both parents automatically have equal rights to legal and physical custody.

Custody in New York has two parts:

  • Legal Custody – The parent who has legal custody has the right to make decisions regarding the child’s care such as education, religious upbringing, and medical care. In a joint custody case, both parents make these important decisions together. If one parent has sole custody, then that parent is the one who makes the decisions. Physical custody has no bearing on legal custody. Even if one parent has physical custody but both parents have legal custody, then both parents make the decisions together.
  • Physical Custody – The parent who has residential custody is said to have physical custody. This means that the parent is responsible for the child’s physical care and supervision. In joint physical custody cases, the child lives with each parent equally. When one parent is awarded sole custody, the child lives with that parent over 50% of the time.  In these cases, the custodial party is the parent with whom the child lives, and the non-custodial party will often be awarded visitation.

Circumstances change though and sometimes changes must be made to the custody order.

How Do You Modify a Custody Order in New York?

New York courts are very serious about child custody cases. Parents are urged to give the assigned custody order a try. But when a custody arrangement just doesn’t work, one of the parents can submit a petition to modify custody.

The first step in seeking a modification of custody is to show that there has been a substantial change in circumstances for one or both parents, the child, or the family as a whole. Once the court determines that this has occurred, the modification request can move forward.

It is important to note that this does not mean the modification for custody will be granted, only that it will be heard.

The next step is the best interest analysis. The court will determine what is in the best interest of the child and that will guide the modification request.

The party who filed for the modification will need to prove that it should occur. Both parents may need to testify and either side could call witnesses or submit evidence to the judge that supports the modification request, showing it is necessary and in the best interests of the child.

Once that is determined, the judge will sign the order and it will become the new custody order. The previous custody order will no longer be valid. 

This can be a complex process though, so an experienced attorney for child custody is absolutely essential. 

What Are the Circumstances Under Which You Can Modify a Custody Order in New York?

The court examines any request for modification of custody and looks for changes in the circumstances of the parent or child that are substantial and would warrant a change to the existing custody order.

Substantial changes in circumstances may include:

  • The finances of one or both parents have changed.
  • One of the parents is relocating, such as for work, school, to take care of a sick relative, or other reasons.
  • One of the parents or the child has experienced a change in their health, either physical or mental
  • Abandonment of the child by one or both parents. The party requesting the modification of custody must submit an affidavit that includes the details of the alleged abandonment.
  • If one of the parents remarries it can impact the custody arrangement and can be a good reason for modification
  • Abuse or neglect must be documented in an affidavit and if the child is not safe being in the family home, which needs to be noted as well.
  • A child who is 12 years old or older can request a modification of custody. The judge will still conduct the best interest analysis, but they will take the child’s desire into account.

Modification of a custody order is very serious. It is important that you look at the reasons that warrant a custody modification.

What is the Best Interests Analysis for Child Custody in New York?

The best interest analysis allows the court to examine many factors when determining if a custody modification should be granted. It looks at what is in the best interest of the child by analyzing various factors.

Here are a few factors that support a custody modification:

  • The existing custody agreement and what the modification is asking.
  • If both parties parent equally or which parent is the custodial parent (primary caregiver).
  • Educational opportunities that both parents can give their child, either separate or apart.
  • The location where the child’s siblings and half-siblings live now.
  • The schedule that the child keeps and whether he or she is encouraged to enforce it.
  • The home environments for both parents.
  • A parent has experienced a significant change in income.
  • Observation of the parents by the court.
  • If the child is old enough under state law, he or she may be allowed to voice their wishes.
  • Childcare needs and childcare arrangements.
  • If one or both parents abuse substances.
  • The child is starting high school, starting a part-time job, training for a sport, starting a new school, and undergoing intense, new training for a vocation or sport.
  • The physical and mental health of the child as well as both parties.
  • The child is diagnosed with a serious illness, chronic condition, or special needs.
  • One parent tries to interfere with parenting time and the custody arrangement and will not communicate.
  • One of the parents has been charged with a crime.
  • Child abuse, domestic violence, or neglect can get the child caught in the middle. The court can decide that the child be removed from the home if there is domestic violence present in the home.

Can You Modify a Parenting Plan Without Going to Court in New York?

It isn’t always necessary for a custody modification to require a court appearance. There are two ways that the modification can be established that do not involve a court appearance.

  1. Settlement – The parents can negotiate the modification through their attorneys and submit it to the court for approval. If the agreement appears reasonable to the court, the judge will likely grant it. The parties can go through their attorneys to arrive at this agreement, or they can go through mediation.
  2. Private Judge – Both parties must agree to this process which involves hiring a private judge that they pay to determine their modification of custody request. This judge is outside of the court system and will arbitrate the modification. That judge’s decision is binding but the procedure is private and does not require a court appearance.

Do You Need an Attorney to Modify Custody in New York?

Modifying custody is not a simple process. There’s a lot to consider. You need a family law attorney who will protect your rights and ensure that the new custody arrangement is fair. Throughout the process, you need legal representation.

At the Litvak Law Firm, we will work with you to find the best possible arrangement for your custody modification and help you build your case. We’ll see you through it every step of the way. Call 718-989-2908 today for your case review and let us help you help your family.