Circumstances in the lives of people who have children change. When a child custody order is initially put in place, it may work fine for the current parental situation. Over time, one parent may become injured and not be able to care for their child. It's also possible for a parent to develop a drug addiction or even become incarcerated. There a number of different situations where a child custody order needs to be modified.
Neglect Or Abuse
When a situation with the custodial parent involves neglect or abuse, a child custody modification needs to be done as soon as possible. An affidavit will need to be submitted to the court. The affidavit will need to provide all pertinent details about the reasons for the allegations of neglect or abuse. The relevant facts must prove a child is in danger by their parent or the environment where they are residing. It must be shown a child has unsafe living conditions. The affidavit must show the custody modification is in the best interest of the child.
Modification Process
A final divorce degree or another type of order in New York will establish visitation and custody of a child. It will be filed with a New York court. If the order or divorce decree contains a section covering stipulated modifications, parents may be able to modify the custody agreement without court approval. Should one of the parents later not follow the agreement, the other parent may not be able to enforce it. This is not the case if the modification to the agreement is approved by the court. It is common for a court to approve a modification if it has been agreed to by both parents. A court will only disregard this if it appears not to be in the child's best interests.
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Informal Custody Agreement
Should a parent seek a child custody agreement modification in New York, the court may ask if there was an implied agreement between the parents. It is common when a child resides with a petitioner for a significant amount of time that a court will not see the need to change the existing agreement. A court does have an obligation to consider any type of current custody agreement. If the parties involved agree that an informal agreement is in place, the court is not likely to change physical custody. This could only be changed if there is a compelling reason to do such thing.
Non-Parental Custody
It is not common for anyone who isn't a child's parent to be permitted to file for custody of the child. In order for this to be successful, it is important an individual show extraordinary circumstances are occurring in a child's life. In New York, unless a child custody case involves abandonment, unfitness of custodial parent(s), continuous neglect or any similar extraordinary situation, a parent will not be deprived of the custody of their child. If an extraordinary set of circumstance does exist and can be proven, then a court may consider granting a non-parental custody of the child.
Legal Custody and Physical Custody
Physical custody is considered the place where the child resides. In New York courts, this is referred to as residential custody. Legal custody is in reference to which parent has been awarded legal authority when it comes to making certain decisions affecting the child. There are common decisions that pertain to legal custody. They are associated with education, medical decisions as well as religious practices and more. A change with a child's physical custody could also involve a change in their legal custody.
Home Environment
This will be a significant factor in determining a modification of child custody. Should a home environment appear to pose a danger to a child, custody modification is essential. Each individual filing a petition will have an opportunity to provide evidence their home environment is best suited for the child.
Proven Benefit
In order for there to be any type of modification to child custody, it must be proven that doing such a thing will be in the best interest of the child. Simply because an individual files a petition does not automatically guarantee they will have an entire hearing. There must be substantial evidence that proves such a hearing is necessary.