In New York, the court will not change a custody order unless there has been changed circumstances. In other words, the court does want parents to file petitions to modify custody every few months. Not only would this be a burden on the courts, ever changing custody arrangements would lead to instability in the children’s lives. Of course, if there was a finding of child abuse, the court would order a modification to the custody order. In addition, if the custodial parent intentionally makes it difficult for the noncustodial parent to take advantage of their parenting time, the court would consider a modification to the custody order.
Examples of changed circumstances include the child is over 12 years old and requests a change; one parent has abandoned or neglected the child, a parent is incarcerated, or one of the parents suffered from substance abuse.
In S.J. v. K.A, the court was asked to determine whether there were changed circumstances such that a modification of the custody order was warranted.
Petitioner mother and father are the parents of 2 children. A 2017 custody order granted joint custody to the parents with final decision-making authority to the father. The children lived with the father 5 days a week and with the mother on weekends. The mother commenced this action seeking primary placement with the children. She asserted that there had been changed circumstances as follows:
- change in the father’s work schedule such that the father’s wife now cares for the children during the late afternoon and evening hours of the father’s five days, coupled with a change in the mother’s work schedule that allowed her to care for the children at those times
- an incident during which the children became upset when the stepmother went to a neighbor’s house and left the children home alone
- father let one of the children sip beer
- father does not enjoy doing homework with the children
- the father and stepmother expose the children to scary movies
- one of the children’s self-confidence has diminished
The court’s analysis centered on whether the facts that the mother alleged amounted to a change in circumstances such that a modification would be warranted. The burden was on the other to prove change of circumstances. The court did not find the mother’s position persuasive.
Looking first at the mother’s argument that change in the father’s work schedule was an issue. However, the court has found that a change of a parent’s work schedule is not a substantial change in circumstances even when the schedule change results in a non-parent providing after-school care to the children. Goodfriend v. Devletsah-Goodfriend, 29 AD3d 1041, 1042 (3rd Dept. 2006). As far the stepmother leaving the children alone, they were only alone for a few minutes and it was an isolated incident. The father responded to the allegations about the beer drinking that it only happened one time and would not happen again. The court dismissed the remaining allegations as not uncommon or unusual. None of the allegations, even if they were all true, amounted to changed circumstances.
Accordingly, the court denied the mother’s petition for a change in the custody order.