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Evidence of Changed Circumstances Must Be Presented in Order For Family Court to Consider a Custody Modification – Newton v. McFarlane,103 N.Y.S.3d 445 (N.Y. App. Div. 2019)


In this case the father, who had full custody of the child, appealed a family Court decision that modified a custody agreement to give full custody to the mother.  In New York, custody decisions are meant to be final. Of course, that does not mean that Family Court will not ever modify custody arrangements. Modifications are permitted, but only in relatively extraordinary circumstances.

Whenever a court makes a custody determination, the foremost consideration is what is in the best interests of the child.  In making an initial determination the court typically reviews a great deal of evidence submitted by both parents.  Some of the factors that the Family Court will consider include who was the primary nurturer of the child, the parenting skills of each of the parents, the physical and mental health of each of the parents, work schedules, family relationships, and, particularly if the child is older, the child’s preference.

Once the court has considered these factors and has made a custody determination, it will not change its decision unless one parent alleges that there is a change in circumstances such that a change is warranted.  For example, if one parent submits evidences that the other parent’s physical or mental health has declined such that he or she is no longer able to properly care for the child or provide a safe environment for the child, the court would want to make an further inquiry into the situation to see if a custody change is warranted.

In Newton, in 2013 the father was awarded both sole legal and physical custody of the child, who was born in 2002.  Subsequently, the mother petitioned Family Court on three separate occasions for full custody.  Family Court denied the mother’s petitions the first two times but granted the third petition.

However, with the third petition which is the petition at issue in this case, before permitting a full custody hearing, the Family Court did not address whether the mother had alleged a sufficient change in circumstances to warrant an inquiry into whether a custody modification was in the child’s best interests.  Instead, the court held the hearing, interviewed the child, and concluded that the mother had established sufficient changed circumstances.  The court gave no explanation of what the changed circumstances were.  It also provided no basis for its conclusion that it was in the best interests of the child to modify the custody arrangement awarding the mother full custody.

Interestingly, the Family Court stated that its conclusion that it was in the best interests of the child to award the mother full custody was at least in part based on the testimony of the child.  However, the child, through her attorney, appealed the decision and challenged the conclusion that it was in her best interests for the custody arrangement to be changed.  In response, the mother argued that the child lacked standing to appeal the decision of the Family Court.

On appeal, the Supreme Court rejected the mother’s position that the child had no standing to challenge the decision of the Family Court to modify the custody arrangement because the child was not  aggrieved by the Family Court’s decision.  In order to have standing to appeal a court decision, the appellant must have been aggrieved.  In other words, the appellant must have been impacted by the lower court’s decision and must have more than an academic interest in the matter. The Supreme Court found that the child was aggrieved by the Family Court’s decision because she had a “real and substantial” interest in the outcome of the case as the outcome would determine where she would have to live and who would make decision for her.

In addition, on appeal, the Supreme Court found that the Family Court failed to first require that the mother make an evidentiary showing of a change in circumstance such that a full hearing would be appropriate to determine if changes need to be made in the custody arrangement consistent with the best interests of the child.  In this case, the Supreme Court noted that the Family Court should have been even more cautious in proceeding with a full hearing because the mother had a record of petitioning the court for custody modifications and the court dismissing her petitions because she had not presented evidence that there had been a sufficient change in circumstance.

When considering asking Family Court to change an existing custody order, it is important to understand that the court requires more than a parent wanting more access to the child.  The petitioning parent must show evidence that because something has changed, it would be in the best interest of the child for the custody arrangement to be changed.

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