New York Family Law Blog
In Hendershot v. Hendershot, 187 A.D.3d 1584 (N.Y. App. Div. 2020), a father appealed against a court order that increased the mother’s visitation rights with their children. Under New York law, in order for there to be a custody modification, there must be a change in circumstances.
A “change in circumstances” refers to significant alterations in the living situation, health, or welfare of a child or parent that impacts a child custody arrangement established by a previous court order. This change must be substantial enough to justify reevaluating the custody or visitation terms to ensure they continue to serve the best interests of the child. Common examples include relocation, changes in a parent’s lifestyle or health, alterations in the child’s needs or preferences, or any developments that materially affect the parent’s ability to provide a stable and supportive environment for the child.
Background Facts
In a post-judgment proceeding stemming from a divorce, the father appealed a court order that granted the mother an increase in her visitation rights with their children. Initially, the divorce judgment provided the father with significant time with the children during the week, while the mother received defined visitation rights. The mother’s motion to increase her visitation time arose after significant changes in both parents’ living circumstances.
The father had relocated to Ithaca to attend college, living there during the weekdays, which led to the children being cared for by their paternal grandmother during his absence. Concurrently, the mother moved back to Canandaigua from Albany, re-establishing her residence closer to the children. These changes prompted the mother to seek more time with the children, arguing that the new living arrangements of the father disrupted the initial custody setup.
The father contested the motion, arguing that the mother needed to demonstrate a sufficient change in circumstances since the divorce judgment to warrant an examination into the best interests of the children. The case brought into question whether the geographic and lifestyle changes presented by both parents constituted enough of a change in circumstances to modify the original visitation agreement established during their divorce proceedings.
Issue
Whether the changes in the father’s living situation and the mother’s relocation constituted a sufficient change in circumstances that warranted an increase in her visitation rights.
Holding
The appellate court concluded that the changes in the living arrangements of both parents and the desires of the children, who expressed a wish to spend more time with their mother, constituted a sufficient change in circumstances. The court affirmed the decision to increase the mother’s visitation rights.
Rationale
The appellate court’s decision to uphold the increase in the mother’s visitation rights was based on a detailed examination of the “change in circumstances” standard required for modifying custody or visitation orders. The court found that the father’s relocation to Ithaca for educational purposes and the subsequent care of the children by the paternal grandmother during the week constituted a significant change in the living and caregiving arrangements that were in place at the time of the divorce judgment.
Furthermore, the court recognized the mother’s relocation back to Canandaigua as contributing to the changed circumstances, bringing her physically closer to the children and thereby supporting her capability to have increased visitation. The combined effect of both parents’ relocations was seen as altering the dynamics of the original custody and visitation agreement significantly enough to warrant a reassessment of what arrangement would serve the best interests of the children.
The children’s expressed wishes to spend more time with their mother also played a crucial role in the court’s decision. Recognizing that the children, now older and more mature, were capable of articulating their preferences, the court deemed their input as supporting evidence of the need to reevaluate the visitation schedule. The appellate court underscored that while children’s preferences are not dispositive, they are a relevant factor, especially when corroborated by changes in the logistical and practical arrangements surrounding their care.
Conclusion
Child custody cases are not only fraught with emotion, they can also be legally complex. If you are facing a challenge to your parental rights, it’s important to seek experienced legal counsel. An experienced New York child custody lawyer at Stephen Bilkis & Associates can provide the necessary legal support and representation to navigate complex family law issues effectively.