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Family Court Did Not Err in Dismissing Petition for Custody Modification Where Mother Failed to Produce Evidence of Changed Circumstances – Heather U. v. Janice, 2019 NY Slip Op 9338 (N.Y. App. Div. 2019)


Typically, custody disputes are between the mother and father of the child.  However, family relationships are often complex, resulting in custody disputes between parents and members of the extended family. In Heather U. v. Janice, the custody dispute was between the mother of the child and the child’s great-grandmother.  The mother shared joint legal custody with the great-grandmother, but the great-grandmother was awarded physical custody of the child and the mother was awarded visitation.  Because the mother had issues as to how the great-grandmother was caring for her child, the mother petitioned the court to modify the custody agreement.

Upon reviewing the petition of the mother in which she alleged that circumstances had changed such that a change in the custody order was appropriate, the Family Court gave both the mother and the great-grandmother two weeks to provide the court with written submissions with details about the alleged changed circumstances.  Upon receipt of a written submission from the great-grandmother but none from the mother, the Family Court dismissed the mother’s petition, concluding that the mother had not established that a change in circumstances had occurred such that a modification of the prior custody order was appropriate.  The mother appealed to the New York Supreme Court.  The Supreme Court upheld the Family Court’s dismissal.

Under New York law, a custody order will only be modified if the circumstances have changed such that a modification would be appropriate.  For example, if one of the factors that contributed to a father being awarded sole legal and physical custody was that the mother was abusing alcohol, a changed circumstance would be that the mother has been sober for an extended period.  Or, if one of the factors that contributed to a mother being awarded custody was that the court determined that she had better parenting skills, a changed circumstance would be that the child was doing poorly at school and was not receiving appropriate medical care or mental health care.

Before the court will even consider making a custody modification, not only must the petitioner allege that circumstances have changed, the petitioner must provide evidence.  In Heather U. v. Janice, it appeared as if a factor that the court based awarding the great-grandmother physical custody was that the mother did not have a stable home environment and did not have stable employment.  In support of her petition for a custody modification, the mother alleged that she was stable as she had recently secured a job. However, she did not present the court with evidence that she had been hired. In addition, there was evidence that her home environment was unsafe as she continued to have relationships that involved domestic violence.  Thus, the evidence presented to the court tended to show that the mother’s circumstances had not changed.  When the mother was given the opportunity to submit information to support her claim that her circumstances had changed, she failed to submit anything.

If you are seeking a custody modification giving you more access to your child, it is important for you to understand the reasons the access to your child was limited in the first place. You then must make sure that you have made the changes the court wants to see and that you have evidence of those changes.  Further, the court wants to see sustained changed.  In Heather U. v. Janice the mother indicated that she had gotten a new job while her petition was pending.  Even if she had submitted proof of being hired, the court may not have been persuaded that working for less than month was enough to show employment stability.



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