In custody and visitation cases where there is an existing order that is challenged, or you want to modify an existing order or judgment, the legal burden remains that you must show a change in circumstance.  In recent years, there have been a number of cases that have relied on the underlying legal precedent of best interest for the child or children. This is used as a legal argument to change custody or parenting especially if an issue has arisen of paramount concern regarding the children.  This is a way around the change of circumstance standard.  

While it does apply, there was a recent case on June 14 from the Appellate Division, Third Department, New York that upheld a lower court’s decision for dismissing a father’s petition for a change in a custody order stating that he did not show a change in circumstances.  Now this in and of itself is not earth shattering, even if it goes against the trend of best interest.  What makes this case more significant is that the decision and order was from 2018, and the father had absolutely no visitation from the divorce.  The mother fought against father’s visitation stating that he did not show a change in circumstance and won.  The father was denied the appeal and still does not get to see his child.

            To make this clearer, what you agree to in a divorce or court order for parenting; thinking it can always be revisited or changed, is not correct.  The answer may be no. and you very well may not be able to modify the agreement unless there is a provision for future modification or change in circumstance.  How do you do this?

            By way of example, if a child is very young when you are drafting the parenting agreement, you may want to consider modification when a child reaches a certain age such as attending school.  Other reasons to modify may be a relocation of a parent, or a work schedule change if visitation is limited because of a specific job schedule.

            At the DePalo Law Firm, we treat each parenting schedule uniquely and tailor it according to you, your child’s, and your spouse or ex-spouse’s current situation.  We also consider the future.  Children grow and change and so do their parents – consider this when drafting a parenting agreement which may be stagnant and that you and your child may very well “outgrow.”