Modification of Custody/Visitation Order in New York

What Is a Modification of Custody/Visitation Order?

Background

“Under Domestic Relations Law § 75-a (4), a ‘child custody proceeding’ is defined, in part, as ‘a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.’” (Santiago v. Riley (2010) 79 A.D.3d 1045, 1046.)

Jurisdictional Issues and the UCCJEA

“New York [has] adopted the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter UCCJEA), which was, among other things, ‘designed to eliminate any jurisdictional competition between courts and strengthen jurisdictional certainty in child custody proceedings.’” (Montanez v. Tompkinson (2018) 167 A.D.3d 616, 618 citing Matter of Felty v. Felty (2009) 66 A.D.3d 64, 69; see Matter of Michael McC. v. Manuela A. (2007) 48 A.D.3d 91, 95; Stocker v. Sheehan (2004) 13 A.D.3d 1, 4; see also HRS § 583A–201.)

Further, “[u]nder the Domestic Relations Law, a state may have jurisdiction over a child custody proceeding if "th[e] state is the home state of the child.” (Domestic Relations Law § 76[1][a]; see Matter of Felty v. Felty, supra, 66 A.D.3d at 70.)

Home State Defined

“A [h]ome [s]tate is defined as the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding.” (Matter of Felty v. Felty, supra, 66 A.D.3d at 70; see Domestic Relations Law § 75–a[7].)

Forum Non Conveniens

“A court of this state [New York] which has jurisdiction under the UCCJEA ‘may decline to exercise it if it finds that New York is an inconvenient forum and that a court of another state is a more appropriate forum.’” (Matter of Hassan v. Silva (2012) 100 A.D.3d 753, 754; see Domestic Relations Law art 5–A; Domestic Relations Law § 76–f[1].) “The issue of inconvenient forum dismissal is addressed to Family Court's discretion after consideration of the statutory factors, as set forth in Domestic Relations Law § 76–f(2).” (Matter of Hissam v. Mancini (2011) 80 A.D.3d 802, 803.)

General Information for Complaints and Motions

Modification of Custody Arrangement

“To warrant modification of an existing court-sanctioned child custody arrangement, there must be a showing of a change in circumstances, such that the modification is required to protect the best interests of the child.” (Matter of Cortez v. Cortez (2013) 111 A.D.3d 717; see Family Ct. Act § 652[a].)

Factors for the Court's Determination

“Any court in considering questions of child custody must make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness.” (SB v. AS, 2020 N.Y. Slip Op. 50121, 5 [N.Y. Fam. Ct. 2020] citing Eschbach v. Eschbach (1982) 56 N.Y.2d 167.)

“In determining what is in the child's best interests, the court must consider multiple factors including:

the quality of the home environment and the parental guidance the custodial parent provides for the child;
the ability of each parent to provide for the child's emotional and intellectual development;
the financial status and ability of each parent to provide for the child;
the relative fitness of the respective parents; and
the effect an award of custody to one parent might have on the child's relationship with the other parent.”

(SB v. AS, 2020 N.Y. Slip Op. 50121, 5 [N.Y. Fam. Ct. 2020] citing Lisa W. v. John M. (2016) 38 N.Y.S.3d 148.)

The custody determination must be supported by a sound and substantial basis in the record. (Id.) The best interests of the child are determined by a review of the totality of the circumstances (See Eschbach v. Eschbach, supra, 56 N.Y.2d 167, 171.)

Standard of Review and Burdens of Proof

“In custody matters, the credibility determinations of the Family Court are entitled to deference, as the Family Court was in the best position to evaluate the credibility of witnesses.” (Matter of Cortez v. Cortez (2013) 111 A.D.3d at 717.)

However, the authority of an appellate court is as broad as that of the Family Court, and [a]n appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge, it allowed a custody determination to stand where it lack[ed] a sound and substantial basis in the record.” (Middleton v. Stringham (2015) 13 N.Y.S.3d 223, 225; Lombardi v. Valenti (2014) 991 N.Y.S.2d 457, 458-59 citing Matter of Louise E.S. v. W. Stephen S. (1985) 64 N.Y.2d 946, 947.)

The Court’s Decision

“Although the determination of the hearing court which saw and heard the witnesses is entitled to great deference, its determination will not be upheld where it lacks a sound and substantial basis in the record.” (Matter of Sparacio v. Fitzgerald (2010) 73 A.D.3d 790, 791; see Matter of Reyes v. Gill (2014) 119 A.D.3d 804, 804-805.)

“Since the best interests of the children lie in being nurtured and guided by both of their natural parents the noncustodial parent and his children jointly enjoy a natural right of visitation.” (Keating v. Keating (1989) 147 A.D.2d 675, 683 citing Daghir v. Daghir (1981) 82 A.D.2d 191.) “Indeed, so jealously do the courts guard the relationship between a noncustodial parent and his child that any interference with it by the custodial parent has been said to be ‘an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent.’” (Id.)

Documents for Modification of Custody/Visitation Order in New York

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Nationstar Mortgage Llc v. Margaret G Cantwell, David M Bodisher, Mortgage Electronic Registration Systems, Inc. As Nominee For Geneva Mortgage Corp., John Doe document preview

EXHIBIT(S) - H (Motion #6) - Notice of Appeal

4 pages

FILED: DUTCHESS COUNTY CLERK 09/29/2023 03:37 PM INDEX NO. 2015-50229 NYSCEF DOC. NO. 230 RECEIVED NYSCEF: 09/29/2023 EXHIBIT H FILED: DUTCHESS COUNTY CLERK 09/29/2023 03:37 PM INDEX NO. 2015-50229 NYSCEF DOC. NO. 230 129 RECEIVED NYSCEF: 09/29/2023 …

Case Name Nationstar Mortgage Llc v. Margaret G Cantwell, David M Bodisher, Mortgage…