By Dale Riedel, Esq. · Admitted in New York, Bar No. 5837539
Answer
A New York custody order can be modified on a showing of a substantial change in circumstances since the order was made, and then that modification serves the child’s best interests. Both are required, in that order. A parent’s dissatisfaction with the existing arrangement is not enough.
Why the bar is high
Courts value stability for children, and relitigating custody is disruptive. So the law requires you to clear a threshold before the court will even reach the question of what arrangement is best.
That threshold is the substantial change in circumstances. Without it, the case ends there — regardless of how much better your household might be.
What counts
- Relocation by either parent, particularly where it affects the schedule
- A material change in the child’s needs — medical, educational, developmental
- A change in a parent’s circumstances — work schedule, health, living situation, a new partner in the household where it genuinely affects the child
- A sustained pattern of one parent frustrating the order
- The child’s own circumstances changing as they get older
What does not count
- Preferring a different arrangement
- A new house, a new job, or a better income on its own
- A single incident, unless it is serious
- Disliking the other parent’s new partner, absent an effect on the child
Relocation is its own analysis
If a parent wants to move with the child, the court weighs whether the move serves the child’s best interests — the reasons for it, the effect on the relationship with the other parent, and whether a meaningful schedule can be preserved.
Moving first and asking later is the most damaging thing a parent can do in a relocation case. If a move is coming, raise it before it happens.
The mistake that causes the most trouble
Parents who informally agree to a different schedule and operate that way for years.
The order says one thing, the family does another, and everything is fine — until it is not. At that point whoever wants to enforce the original order can, and the parent who has been relying on the informal arrangement discovers it protects them not at all.
If you have changed the arrangement, put it in a court order. An agreement between cooperative parents holds only while both remain cooperative.
Support is different, and easier
A child support order can be modified on a substantial change in circumstances. Unless the parents opted out in a written agreement, it can also be modified on a change of 15% or more in either parent’s gross income, or after three years (FCA §451(3)). An income drop counts only if it was involuntary and the parent has diligently sought work at a comparable level.
And it does not adjust itself. A parent whose income drops and who simply stops paying accrues arrears, which generally cannot be canceled retroactively. File when the change happens.
The short version
Substantial change first, best interests second. Informal arrangements are not protection. For support, file the moment your circumstances change rather than when you can afford to.
Read more: Modifications · Enforcement · Child Custody & Visitation