New York Family Law Blog
In New York, courts will only modify a custody order if there has been a change in circumstances. Examples, a change in circumstances include one parent abusing the child or substance abuse. In Aquitani v. Aquitani, there is a history of the mother accusing the father of abuse. Those accusations as well as the father alleging that the mother had a substance abuse problems are the basis of the father’s request to modify the custody order.
In addition to hearing testimony from the parents, the court ordering a Lincoln hearing during which the judge heard testimony from the child regarding his custody and visitation preferences.
Background
In this case, through court order the mother had sole custody of the child and the father had visitation. There was a history of the mother filing allegations against the father of physical abuse and sexual abuse the child. After each allegation, the court would suspend the father’s visitation, investigate the mother’s allegations, find that they were unsubstantiated, and reinstate the father’s parenting time.
Finally, the father filed a petition with New York Family Court asking for the custody order to be modified giving him sole custody. The basis of his request was the mother’s history of fabricating abuse allegations, her erratic behavior, and her substance abuse.
Discussion
In determining custody, the court’s goal is for each parent to get a much parenting time as possible and for them to share in the upbringing of the child. To this end, the court will order joint custody and shared decision-making when possible. However, where the evidence show that another custody arrangement would be in the best interests of the child, the court will order it. While the court examined a number of issues and factors, two factors that were central to this case were the parents respective willingness to support the child’s relationship with the other parent and the child’s preferences.
As for the father, he court found that he was a loving, fit parent. The court also found that the father demonstrated that he was willing to engage the mother in co-parenting and to facilitate a loving relationship between Connor and the mother. The court found the testimony of the father to be credible and found him to be a loving, engaged, self-aware, deeply reflective, and mature parent. It was clear that his goal was to do what would be in the best interests of the child. The court concluded that he was more than capable to be a custodial parent.
As for the mother, the court found that she had extreme animosity towards the father that she was unable to put aside in order to effectively co-parent. Instead, she chose to make false allegations of child abuse against the father and refuses to believe that the father is a good father. The mother has made allegations that the father both physically and sexually abused the child. The allegations proved to be without merit. The court found the mother for the most part to not be credible. She refused to withdraw her baseless allegations against the father and refused to see him in any way but negatively. Evidence presented showed that when the mother was mad at the father she not only made false allegations against him, she also encouraged the child to make up stories about the father.
Through a Lincoln hearing, the court also heard testimony from the child. It was clear that the child had been for the most part shielded from the tumultuous relationship between the mother and the father. It was also clear that the child had a good relationship with both parents and wanted to spend time with both parents.
The court decided to modify the custody order to give the father sole legal and physical custody with the mother getting liberal visitation. The court warned the mother that if she continued with the pattern of false accusations against the father, the court would order supervised visitation.