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Court modified custody order from father having full custody to mother having full custody. S.N. v. J.A., 2021 N.Y. Slip Op. 50304 (N.Y. Fam. Ct. 2021)


In New York, a child custody order can only be changed under specific conditions, including if there has been changed circumstances such that it would be in the best interests of the child that the court modify the child custody order. In this case, the Family Court was asked to consider whether a modification of the custody was appropriate given the circumstances.

The mother and father were parents a child.  A March 2017 order granted the father sole custody of the child. The mother now seeks a modification of the order granting her sole custody. The child was born on May 16, 2014. Following the mother’s admission that the child suffered an unexplained injury while in her care, on December 4, 2014, the Suffolk County Family Court issued an order placing the child with the sister of the purported father and permitting the mother supervised visitation. After it was determined that the purported father was not the child’s father, the child was placed with the mother’s aunt and uncle.  On March 10, 2016, a final order of protection was issued against the mother on behalf of the child for two years. When paternity was established, the child’s father filed for full custody and it was granted on March 3, 2017. The mother was granted supervised visits with her mother doing the supervising.

Once the mother and father rekindled their romantic relationships, the mother was able to see the child more. For about 5 months, the three even lived together in a shelter. Following an argument in 2018, the father kicked the mother out of the shelter and moved into a women’s shelter. The mother filed a petition with the Family Court seeking to modify the order of custody.  She alleged that the father was violent to both her and the child, that she was the primary caretaker, and that the father was facing felony criminal charges and incarceration due to his assault of a woman on a subway in front of her and the child.

During the pendency of the case, the mother was granted increasingly more unsupervised visitation.  At the same time, the father pleaded guilty to felony assault and was sentenced to 4 months in prison. The court awarded the mother temporary custody of the child while the father was in prison.

One the father was released from prison, he regain full custody and the mother had visitation.  The mother, concerned about some of the actions of the father such as failing to vaccinate the child for the flu and failing to change the school enrollment of the child, filed motion for full custody.

In support of her petition, the mother gave credible testimony of her history with the child including the incident when the child was in her custody and he sustained an injury. She sought help including psychotherapy and drug counseling.  She also stated that prior to the father being incarcerated he had become verbally and physically abusive. After he was released from prison, while she saw the child every other weekend as ordered by the court, the father refused to tell her where he lived, where the child attended school, or anything about the child’s medical history. The mother also testified that while the father was in prison, she found him a pediatrician and enrolled him in school and introduced structure. She learned that the child was behind in academics and worked with him.

On the other hand, the father testified that the child was not behind academically and that he was never violent. He also testified that he believe that the mother was not mentally ready to care for the child.

The court first looked at whether a change in circumstances had occurred. While the father argued that there had not been a change in circumstances, the court found that assertion almost amusing. The fact that the father had been incarcerated and had lived with the mother during that time was a change in circumstances. Clearly, the father’s incarceration and all that followed constituted a huge change in the child’s life. In addition, the father’s actions immediately before and since his incarceration did not help facilitate the mother’s relationship with the child.

Finally, the mother’s proposed modified custody gives her full custody, but provides for generous visitation by the father.  On the other hand, father simply requested that the mother’s petition be denied without offering an alternative arrangement that would provide the mother with greater access to the child.

The court granted the mother’s petition, giving her full custody. The main reason is that the mother showed more interest in doing what was in the best interests of the child.



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