Can I modify child support or custody orders after the divorce?
Jennifer Paulino
New York managing attorney at Marble Law
Key Takeaways
- Yes, you can modify custody under certain specific circumstances.
- Grounds for modification include but aren’t limited to: parents agreeing or one parent moving, remarrying, being deployed, or neglecting the child.
You may be able to modify child support or custody orders after a divorce. In New York, you must prove that there’s been a change in circumstances since your initial custody order went into effect that warrants this modification. The person who requests the modification is responsible for presenting evidence that a substantial change has occurred.
Few circumstances automatically justify modifying custody. You generally have to prove that the balance of all facts justifies the change. A court should consider any relevant factors when making its evaluation, including but not limited to changes in one or both parents’:
- Physical or mental health
- Financial circumstances
- Living situation
- Relationship status
The parent requesting modification must also convince the judge the modification is in the child’s best interests based on factors such as:
- Stability
- Caretaking ability
- Childcare arrangements and work schedule
- Special needs of the child
- History of domestic violence
- Sibling relationships
- The child’s wishes
- Access to community and educational resources
10 reasons a judge in New York might change custody
Many parents find a family lawyer essential to custody modification, especially when the other parent is abusive or uncooperative.
Here are 10 reasons a judge in New York might change custody:
Both parents agree to the modification
If both parents support the modification, the court will typically approve the change unless there are concerns over the child’s health or safety.
A parent intends to move away
Custody orders frequently specify where the custodial parent may reside. Although the court—and the other parent—may allow the custodial parent to move, the move may justify modifying custody.
If the noncustodial parent intends to move and wants to take the child with them, the same factors apply. The fact that the parent doesn’t already have custody—and why—may factor into the court’s decision. Ultimately, the outcome depends on the child’s best interests.
A parent remarries
When one parent remarries, their living environment may change dramatically enough to modify custody. However, the remarriage must genuinely affect the child in order to justify modification.
One parent interferes with the other parent’s rights
If the custodial parent withholds or interferes with visitation rights, the noncustodial parent may request the court suspend alimony or maintenance payments. Repeated interference may justify custody modification.
A parent is deployed or returns from deployment
A deployed parent typically creates changed circumstances justifying a custody modification. The parent returning from deployment also qualifies—automatically.
A parent is incarcerated
A court may consider a parent being in jail or prison for more than a brief period as changed circumstances. The length of incarceration, charges and whether conviction occurs factor in on a custody modification request.
If the parent is jailed for three months based on relatively minor charges that don’t reflect their ability to care for the child, modification may only be temporary. More severe convictions or guilty pleas may justify more significant limitations. For example, a parent convicted of the murder of someone close to the child is typically unable to be awarded custody.
Get the right lawyer for your divorce
Schedule a free 15-min call with our team today
Get started
A parent abuses, abandons or neglects the child or another household member
In the context of familial relationships, New York defines abuse as inflicting or creating a substantial risk of physical injury to a child or sexually abusing the child. Neglect occurs when a parent fails to provide adequate supervision or care.
A parent who commits these acts may lose custody, visitation rights or parental rights. The parent may also lose custody if their abusive actions are directed at someone else in the child’s or the parent’s household.
Someone else petitions for custody
Special legal provisions allow grandparents to petition for custody in specific, limited circumstances where the parents are unfit. Others, such as current or former foster parents, may be unable to gain permanent custody unless both parents lose their parental rights.
Child Protective Services removes the child
New York’s Child Protective Services (CPS) may get involved if someone raises concerns about the child’s safety. If CPS investigates and concludes abuse or neglect has occurred or is occurring, it may remove the child from one or both parent’s custody.
The child requests a change
Depending on the child’s age, they may request a change of custody. The child typically needs to have one of the following:
- A parent file for the change
- A guardian ad litem (or GAL, an attorney appointed by the court to represent the child’s best interests) file on their behalf
- Another adult file on their behalf
Quality legal care for life’s ups and downs
Our services
Client support
Disclaimer
Legal information