What is considered a change in circumstances?

A change in circumstances typically involves situations affecting: 1) the care and environment the custodial parent can provide, 2) the child’s health or well-being and 3) the relationship with the noncustodial parent. For example, a parent who’s been evicted can no longer provide the same environment they could pre-eviction. And a parent experiencing a relapse of a substance use disorder may place the child in dangerous situations, like leaving the child alone for long periods or driving while intoxicated with the child present. These circumstances may threaten the child’s general health and well-being. Lastly, a custodial parent moving away with the child may significantly impact the child’s relationship with the noncustodial parent. This may limit how often the parent sees the child and their ability to remain active and present in the child’s life.

Can a child choose which parent to live with in New York?

Some children may be able to choose which parent to live with in New York. The child’s preferences are among many factors New York courts may consider when awarding custody. The older and more self-possessed the child is, the more weight the court is likely to give to their expressed wishes.

Does parental alienation justify a change in custody?

Depending on the circumstances, parental alienation may justify changing custody. However, because of the risk of placing the child in an abusive environment, parental alienation cases garner more scrutiny.

Will a judge modify custody in New York?

parent with two small children and a baby in a stroller in front of a marquee on Broadway in New York

What's Inside

Bottom line

Key takeaways

Custody modification in New York requires a substantial change in circumstances and for the modification to be in the child’s best interests.
Oftentimes, situations that affect a parent’s ability to care for or see the child may be considered a substantial change in circumstances.
The person who requests the custody modification has to convince the New York court that the change is justified.

Laws in New York

New York’s child custody laws are buried in an article titled “Provisions Applicable to More Than One Type of Matrimonial Action.” If you’ve been searching for an explanation of when a court may change custody and why, you’ve come to the right place.

This article explores 10 reasons a judge will change custody in New York, including moving, remarriage, interfering with parental rights, abuse and deployment. Overall, modifying custody typically requires a change in circumstances, usually involving situations that affect the care and environment one or both parents who provide for the child.

Modifying custody

Before we dive into specific reasons a judge will change custody in New York, let’s explore the grounds for custody modification generally.

Under New York law, you may petition to change custody when there has been a substantial change in circumstances since your initial custody order went into effect. 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

Based on these legal principles, below are 10 circumstances that may justify a custody modification in New York.

1. Both parents agree to the modification

One of the most reliable ways to modify custody is for both parents to agree to it. If both parents support the modification, the court will typically approve the change absent concerns over the child’s health or safety.

Pro tip: A court may reject a custody proposal or modification, but it’s rare. You and your co-parent may also agree to informal modifications, but your legal rights and responsibilities remain unchanged unless you get court approval.

2. 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. In such a case, the court often considers factors such as:

Each parent’s reasons for supporting or opposing the move
The relationship between the child and each parent
How moving would impact the child’s future contact with the noncustodial parent
Whether and how moving would economically, emotionally and educationally enhance the child and custodial parent’s lives
How challenging the move would make preserving the relationship between the child and noncustodial parent

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.

3. 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.

Pro tip: Growing pains can occur in blended families, but modification may be justified when the situation goes beyond growing pains. This may happen when stepsiblings bully a child, a stepparent treats the child poorly or the custodial parent fails to provide adequate care and attention following the marriage.

4. One parent interferes with the other parent’s rights

New York law takes interfering with the other parent’s right to see their child seriously. 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.

Interference may manifest in several ways, such as:

Not allowing the parent to see their child during their scheduled time
Exchanging the child late or cutting the child’s visits short
Taking the child on trips without informing the other parent, especially during that parent’s time
Parental alienation, when one parent manipulates a child to turn them against the other

The science behind “parental alienation syndrome” (PAS) is under debate. Many New York judges may hesitate to admit evidence concerning PAS or severely limit its use due to the flaws in the underlying theory when allegations of abuse, especially sexual abuse, are concerned.

Pro tip: Judges have a high level of discretion in what they do or don’t admit as evidence, and every judge is different. When offering evidence related to parental alienation, it’s often better to avoid offering evidence of questionable scientific value. Instead, provide specific details indicating the other parent has manipulated the child, like moments of apparently unjustified hostility from the child and why that hostility indicates manipulation by the other parent.

5. 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.

6. A parent is incarcerated

A court may also 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 weigh on a custody modification request in New York.

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.

7. 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.

8. 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

Pro tip: A court may appoint a GAL if it concludes the child’s best interests aren’t being adequately represented in a case. The court may determine a GAL is necessary based on parental conduct, general concerns related to the child’s treatment or if the child expresses opinions contrary to the parents. GALs are officers of the court, and the court may rely on their opinions with respect to custody issues. Even if you think a GAL is unnecessary or their opinions are wrong, try to remember that they’re there to protect your child.

9. 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.

10. 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.

Pro tip: If you’re sued for termination of parental rights, you can hire an attorney to represent you in those proceedings.

How a lawyer may help

Modifying child custody is often a factually and legally demanding process. You need to know the reasons a judge may change custody in New York, what the court considers in evaluating a child’s best interests and how to gather and present your evidence effectively.

Many parents find a family lawyer essential to custody modification, especially when the other parent is abusive or uncooperative. Your lawyer will advise you on your options, help you design a case strategy and explain how to win a child custody modification case. A lawyer also provides peace of mind and someone to rely on through the difficulties of fighting for custody.