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Last Updated on: 29th August 2023, 06:36 pm
Child Custody Modification: Understanding the Process
Child custody, which involves determining how a child is raised and financially supported, is not a permanent order. At any time, circumstances can change. These changes will cause one or both parents to seek a modification. A modification is simply a change to the current order of child support. An order of child custody may be agreed on by both parents and approved by a family court judge. It could be decided on by a judge after a hearing where the parents, wanting different custody options, plead their cases.
You can Seek a Child Custody Modification Order in New York if It is in the Best Interest of the Child
A parent or guardian can go back to family court to seek an order of modification to the current order of child custody when:
- Some part of the agreement changed. The change may be to a parent’s finances, health or residence.
- Circumstances of the child or parent have substantially changed since the current order or agreement
- The child, who is at least 12 years old, request the child custody change
- One parent or guardian abandoned their child
- The child was the victim of neglect or abuse. In the case of neglect or abuse, the parent or guardian requesting the change must submit an affidavit to the court regarding the neglect or abuse. The affidavit must entail the child being in danger, living in an unsafe environment and how the modification will be in the best interest of the child.
Both parents do not have to seek a modification. Only one parent may want the child custody modification.
The Parent Requesting the Child Custody Modification has the Burden of Proving It is Needed
Every time a judge decides on an initial or modification of child custody, they take into account the child’s best interests. However, the parent wanting the child custody has the burden on proving to the judge the modification is needed.
This is not like criminal court where the prosecutor must prove beyond a reasonable doubt of a defendant’s guilt. That is the highest burden of proof. The parent only has to prove by using clear and convincing evidence that the changes are in the best interests of their child.
“Clear and convincing” burden proof means the parent must show the judge the reason for the modification is more than likely true. For instance, the parent requesting the modification is seeking the change because they remarried. They must show the change in their circumstance, their remarriage, makes it more than likely true that their modification is needed. This could be more time with their child or a change from alternative weeks to the summer months.
The family law judge will listen to both parents. The parent opposing the modification can show the modification is not needed and provide their own proof. The judge will review the case and make the determination based on the:
- If the parent wanting the child custody modification proved with clear and convincing evidence the modification was needed
- If the parent opposing the modification successfully provide it was not needed
- If the facts and evidence supported either parent’s argument
- What is in the best interest of the child
- What the child wants if they are able to and old enough to convey where they want to live or visit
Contact Spodek Law Group about Your Child Custody Modification
If you need help with your child custody modification, contact us immediately.