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Court refused father’s request for a temporary modification to custody order. K.A. v. N.Q. (In re a Proceeding Under Article 6 of Family Court Act), 2022 N.Y. Slip Op. 50187 (N.Y. Fam. Ct. 2022)


When a court issues a custody order, it is designed to be permanent. Typically, courts consider a substantial amount of evidence from both parents before making a decision on custody. The goal of the court is to do what is in the best interests of the child. Generally, that would be joint custody and relatively equal parenting time. Before issuing the order, the court would consider each parent’s financial situation, each parent’s living environment, who has been the primary caregiver, the parents’ ability to communicate with other, and the each parent’s interest in supporting the other parent’s relationship with the child. Thus, the court will only change a custody order if there has been a change in circumstances.

Generally, when a parent petitions the court about modifying a custody agreement, the parent requests a permanent change to the order because of a change in circumstances.  However, there are instances in which the parent requests a temporary change in a custody.  In K.A. v. N.Q.  the father asked the court to temporary give him sole custody and physical custody until the mother received help for her anger issues.

In this Family Court case, the parents share joint custody of their children. Citing the mother’s “violent tendencies,” the father petitioned the court asking for a temporary change in custody giving him full legal and residential custody. Learning that the mother was considering relocation with the children to another state, he subsequently filed with the New York Supremet Court a motion for an emergency order awarding him full custody, a ordering that the mother not relocate the children outside of Nassau County, and a temporary order of protection. His requests were granted.

In response, the mother requested full custody and a temporary restraining order against the father stating that he has been violent against her. She also asserted that she had not intentions of relocating outside of New York and would never do so unilaterally.

Whether the change in custody is designed to be permanent or temporary, the court will only modify a custody order if it is in the best interests of the child. See Matter of Street v. Palmer, 187 A.D.3d 1197, 1198 (2d Dept 2020). Here, both parties allege physical violence against each other. In determining what is in the best interests of the child, it is necessary for fact-finding to take place and an evidentiary hearing.  Because of that, the court declined to temporarily modify the custody arrangement to award the father sole legal and physical custody of the child.

However, the court did grant the father’s request for a temporary order of protection against the mother that requires her to refrain from committing any family or criminal offense including threatening or intimidating the father or the children. While the court was not able to verify whether the mother had committed any family offenses, the relationship was acrimonious enough for the court to issue the temporary order of protection. As far as the issue of the mother relocating out of Nassau County with the child, the court found in favor of the father.

In this case the court’s decision was based on the limited information it had at the time. After a full evidentiary hearing during which there are more complete facts and full testimony from the parties involved, the court may come to a difference decision about custody.



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