When a New York court issues a custody order that is not deemed a temporary custody order, the order is considered final. The court wants children to have stability. The court, however, will modify a custody order if the situation warrants. For example, if a child is over 12 years old and wants to live with the other parent, that might warrant a modification. If a parent becomes abusive or develops a substance abuse issue, the court would view that as a reason to modify the custody arrangement. Another grounds for modifying custody would be one parent interfering with the other parent’s access to the child. There must be a change in circumstances such that modifying the custody order would be in the best interests of the child.
In Katie S. v. Christopher K., the New York Family Court was asked to determine whether there were changed circumstances such that a change in custody was warranted.
The petitioner mother and father were parents of Marceline who was born in 2015. There was a court ordered custody agreement dated April 12, 2016 which granted the parties joint custody, with the mother having primary physical custody. Claiming a change in circumstances, on September 22, 2020, the mother now petitions the court for sole custody. The father responded by cross-petitioning for sole custody.
Where there is hearing on a petition to modify a custody order, the parties first must prove a “change in circumstances which reflects a real need for change to ensure the best interest(s) of the child.” See Matter of Amy L.M. v Kevin M.M., 31 A.D.3d 1224, 1225 (4th Dept 2006). According to the mother, the change of circumstances was based on the father being accused of abusing the child. The father admits that Child Protective Services (CPS) were contacted because of his use of corporal punishment on Marceline that resulted in his handprints being left on her buttock and a small bruise near her eye. In addition, the father admitted that his girlfriend put pepper on the child’s tongue as punishment for talking back. On the other hand, in support of his petition for sole custody, the father claimed that the mother’s actions we designed to alienate him from the child and to “phase” him out of the child’s life. The father gave an example of the grandmother telling the child that the court forces her to see the father and of the mother “baiting” him into arguments in front of the child.
While the court did not condone the mother’s manipulative behavior, it did not find that it arose to the level of custodial interference or alienation. Accordingly, the court found that the father did not meet his burden of proving that the mother’s behavior was such that there should be a modification in custody giving him sole custody.
The court did find that the mother sustained her burden of providing evidence of changed circumstances such that she should be awarded sole custody. In addition to the evidence related to the corporal punishment, the mother presented evidence that the father’s home environment was not conducive to the child’s emotional development. The child was diagnosed with sensory issues that impacted the food she would eat and the clothing she wore. She required loose fitting clothing and only wore pants when it was cold out. The father was skeptical of the diagnosis, did not accommodate her clothing preferences, and did not attend the child’s occupational therapy sessions.
The court concluded that the mother attends to the child’s emotional, medical, and educational needs and that father does not. In addition, the child expressed a preference for living with her mother. Even though the child was only 6 at the time, because of her maturity as gleaned through an in camera interview, the court gave her preference some weight. Thus, it was the best interests of the child for the court to modify the custody order awarding the mother sole custody and her primary residence would be with the mother. The father was giving increased visitation.