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Brooklyn Family Law, Blog

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October 20, 2014
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October 21, 2014
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Custody Orders. Can Actions of a Parent Result in a Petition for a Modification of a Child Custody Order?

Custody Orders. Can Actions of a Parent Result in a Petition for a Modification of a Child Custody OrderMany circumstances arise with your child or children that will warrant your filing a petition for modification of your existing Custody Order, though there are many hurdles to jump in order to succeed. The first hurdle: there must be a substantial, meaningful change of circumstances since your existing Custody Order was made. This means that being late to pick up or deliver the child one or two times will not rise to the level the Court will consider for a modification of custody, but if it is extremely late and every time and for months, it might be enough. The issues that warrant a change must really be serious in terms of the severity of the behavior, or in the frequency of the behavior that is not as severe. Once that hurdle is jumped, the primary concern of the Court will be the best interests of your child. The “best interests” of your child is solely a determination that the Court can make. You, as a parent, are not the one that can make this decision once you place it before the Court. This gives you your first clues as to what you should be looking for: the Court will not disrupt the Custody Order unless there is serious reason that benefits the child. The Court will always put the child first and frown upon parents that do not do the same.

Often, we see primary custodial parents act in ways to make the child dislike the other parent. This can be done by speaking badly of the other parent, convincing the child not to go for visitation, making promises to the child about what they would be able to do if they stayed home knowing the child wants to do that, all in an effort to alienate the child from the other parent and deny that parent time with their child. “Their child” is a vital thing for you to remember. Your child has two parents and both parents have rights no matter how vile you believe the other parent to be. You do not own your child. A method that many parents think is a clever way of denying the other parent’s time is by scheduling many Legal Services/Info for the child during the other parent’s time. This also comes in the form of, “no, you can’t come with us for ice cream because you’re going to your father’s/mother’s.” If you are the primary parent and realize you are inadvertently doing these things, you are putting your custody at risk. You are also putting your child at risk of losing you as custodial parent. Change your behavior or you will face a modification petition from the other parent that could be successful. You could lose custody.

When a parent refuses to follow an existing Custody Order by totally denying the other parent access to the child without any reasonable cause a custody modification petition will follow. If a parent regularly refuses to return the child and follow terms of the Order, it may be time to file a petition for modification of custody. The sooner you take action in the Court system on this, the less time you will miss with your child and the higher the likelihood of your success in your modification petition. By allowing this type of behavior to go on for months or years without filing a custody modification petition to cure the problem, a Court may get the impression that you really do not care about your time with your child. A Court may think that your petition is really not about modification of custody but about harassing the other parent. Judges do not look kindly upon a parent that fails to do what the Court has ordered and harms the child in the process or a parent that brings a custody modification petition to clog up their Court just to irritate the other parent.

Perhaps new boyfriend or girlfriend has moved in with your child’s other parent posing a risk to your child. This person may have a criminal record, a history of drug use, abuse, child abuse, child neglect, spousal abuse, domestic violence or display other behavior that place your child at real, not imagined, risk. Possibly you discover the other parent now uses or abuses drugs, has started leaving your child home alone at a very young age, or other actions that place your child at risk. These or any other real risks posed to your child while in the care and custody of the other parent would warrant the filing of a petition to modify your Custody Order. What is important to remember here is that the risk must be real. You must be able to prove that your child is at risk in the current circumstances. Also, remember what we said in the beginning of this answer: the change must be substantial and meaningful to jump the first hurdle for success in a custody modification action. The risk cannot simply be in your suspicion and worry. You must be able to prove that your child is placed at risk in this new situation.

If your child is at risk of harm and you know this to be true, Child Protective Services may be available for your child’s immediate protection while you are going through the process of filing a petition for modification of custody. But, again, consider how the Court will view this. If you call CPS just to gain an advantage for custody, the Court will look very, very badly on this. Again, back to the beginning of this answer and throughout, we have said that the Court will consider the best interests of the child in making any custody decision. A parent that makes a child go through CPS investigations, particularly false claims of sexual abuse, will be viewed as harming the child. Do not make these calls if you do not have a true belief that your child is at risk of harm. If you make false claims and use those claims to support your custody modification petition, you may lose custody yourself. That said, if your child is at risk of immediate harm, you should keep CPS in mind to protect your child from actual, real harm. Then file your petition for modification of custody. These are only a few examples of circumstances that arise warranting a modification of your Custody Order. Hopefully this will serve to guide you in your decisions for your child’s benefit in seeking modification of your Custody Order and to prevent being on the receiving end of a petition for modification of custody.

Renata Weissman maintains a Brooklyn Law Practice dedicated to Family Law. Knowledgeable in all aspects of Family Law, her expertise and staff or Divorce attorneys can assist in all aspects of child custody, child support and all aspects of divorce. Contact our law firm in Brooklyn, NY today, use the contact form located on the left of this page, or call us 855-736-2829.