«

SHOULD I MODIFY THE CUSTODY ARRANGMENT

J

When someone comes in to meet with me because they want to modify or change their custody order or arrangement, I begin each FREE CONSULTATION with this question:  What do you want the Court to do? 

This is the single most important question in a modification of custody matter.  What do you want a new or modified order to say in place of the old one

It is not effective to simply bring problems to the Court to solve, they are not in the problem-solving business, they are in the “what do you want me to do about it” business.  The Court’s ability to solve many of families’ complex issues is very limited.

I want the Court to put in an order that my children decide when to visit. 

There are attorneys who will take your money and go to Court with this request, however, an experienced attorney will have told you that in NY the child cannot decide when to visit.  Orders can reference “taking into consideration the activities and wishes of the child”  however, that still does not give the child the ability to just not visit.

I want visitation to change and not include current overnights or to have less time with the other parent. 

To accomplish this in Family Court you must show a CHANGE OF CIRCUMSTANCES since the last order.  What happened that would cause the Court to change your order since you were last in court.  The Court will not go back and re-litigate matters prior to that date.  You must be able to set forth specific actions (not just worries of what might happen) since the prior order.  If you simply say your child wants the change and do not put in other specifics your petition is not likely to survive a motion to dismiss.  Do the best you can to tie everything to an effect on your child or children. This can be tricky so hire an experienced attorney or you could spend the money and put in the time and get your papers and matter dismissed with nothing to show for it.

My child wants me to bring this request so they can visit differently. 

To be successful your child must understand a very important concept.  YOU CANNOT SPEAK FOR THEM!!!  I have represented hundreds of children over the 30 years I have been in practice.  So many times the children do not tell me anything that supports the effort to change the custody arrangement.  They simply assume that they told their parent so now they do not have to advocate for themselves or say anything bad about their parent.  This is NOT true.  The Attorney for the Child (AFC) is the one person who has to put forth their position and it is not hearsay.  The Court will ask if they have a position and why (much like your attorney is asked) and if the children do not have a position and specifics then it hurts your chances.

The final point here is that filing for a modification is complicated business and should not be attempted without experienced legal assistance.  Conta me for a free initial consultation before proceeding.