Can a Party Modify a prior Custody and Visitation Order or Agreement

A parent can move to modify a prior order of custody and visitation upon a showing of a change in circumstances and that a change in said Order would be in the children’s best interests. In the 2020 case of Matter of Epstein v Soler-Epstein, cited as 188 AD3d 1052 the Supreme Court Appellate Division, Second Department, upheld the lower Court ruling that where the Father went through an extensive treatment for alcohol abuse,  his visitation could be enlarged to overnight access so long as certain precautions were in place such as a Sober link device and a weekly reporting service.   The Court noted that the evidence showed that the Father learned to recognize that he had a problem and needed to refrain from the use of alcohol.

In the case of Matter of Stepan K. v. Marina M., 188 AD3d 600 (1st Dept. Nov. 24, 2020) the Appellate Division, First Department affirmed a lower court hearing for modification of a prior custody agreement by holding that the Father had shown a change in circumstances warranting a change of custody. The Father was granted custody because the Mother refused to share information regarding the child’s school,  traveled with the children without informing the Father or letting his speak to the children in his absence.  The Mother had also made false reports that the Father had sexually abused the children. On these sorts of facts, the Court felt that the Mother was not fit to be a custodial parent and awarded the Father sole Legal and physical custody of the subject children.

In the case of  Tsung v. Tso, 2021 Westlaw 189198 (1st Dept. Jan. 19, 2021), the mother appealed from a lower court Order made in Supreme Court which granted the Father’s application to modify their parenting agreement and awarded shared custody such that each parent had the exact same number of days with the children. This decision of the Court was based upon the fact that the children had expressed an interest in shared custodial time.  The Court based its decision largely upon the Fact that the Father had established a change in circumstances after proving that the mother regularly interfered with his time and access with the children, that she utilized the services of a nanny when the children could have been with their father, and that she refused to coparent with the Father.  

Domestic Violence is also another factor that a court may consider in modifying a custodial Agreement or prior Court Order. In the case of Matter of Paul Y. v. Patricia Z., 2021 Westlaw 55019 (3d Dept. Jan. 7, 2021), after an eight-day trial, the Family Court modified custody when the Mother showed the Court that the parties’ relationship was so broken down that co-parenting was now impossible and was against the best interests of the children.  In that case, the Appellate Division granted the Mother sole legal and physical custody of the children and agreed with the Family Court ruling that the father had committed domestic violence against the Mother.  The Court went on to conclude that the Mother was kind and nurturing and that the Father, that the Attorney for the child advocated for the change in custody,  and that the Mother had made a showing that  the Father had done at least four acts of domestic violence including but not limited to the fact that the Father had grabbed the Mother’s hair, sat on her, pushed her, kicked her and threatened her with a knife, and twisted her arm.  The Court also alluded to the fact that the Family Court’s issued an order of protection against the Father for acts of harassment in the 2d degree.

By: Your Manhattan Divorce Lawyer

Lisa Beth Older 

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