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Modifications: Going Back to Court

April 16, 2023

Change happens.  That’s one of the few certainties of life.  So what happens when your life changes in a way that requires a modification of a divorce judgment, custody order, or support order?  The answer may seem straightforward, but the details of any given case need to be addressed by an experienced family law attorney.  This post provides legal information only, not legal advice (which is based on the specific facts of any given case).

For modification purposes, divorce judgments and orders can be broken down into two general categories – those that involve the custody of children and those that involve financial rights and obligations, including child support, maintenance/spousal support, and other future payments.  There are separate legal standards applicable to each of these two categories of orders.

Custody and Access Modifications

With respect to child custody cases in New York, a parent must file a formal request with the court by alleging that there has been a “substantial change in circumstances” that makes it necessary to modify the prior custody order or agreement based upon a child’s best interests.  The “substantial change of circumstances” must have taken place after the last custody order was issued.  Only after an initial showing has been made with respect to a “substantial change of circumstances” may courts “reopen the best interests analysis” – i.e., determine what would be best for the child or children under the new facts of the case.  If no substantial change of circumstances is established, then a court may not even reach the point of considering what would be best for the child or children involved. 

Parents may enter into agreements governing many details of child custody and access, but an agreement provision cannot modify the legal standard for a custody-related modification.  Any custody provision that seeks to prevent a parent from going to court where there has been a substantial change of circumstances would be unenforceable in a New York court.  Even if there are signed agreements to the contrary, parents always have the right to go to court in the event there is a substantial change of circumstances that affects a child.

The “substantial change of circumstances” standard may be met for child custody purposes where there is evidence of child neglect, domestic violence, reports by child protective services (both “indicated” and unfounded reports may be significant), substance abuse, a mature child’s preferences (children often get their own lawyers when there is custody litigation between parents), an urgent need for one parent to relocate, a history of parental gate-keeping, lack of cooperation, and/or violations, etc…  

In order to assess how compelling the evidence is in your case, you need to consult an experienced child custody attorney.

Financial Modifications

Support Modifications: Courts will also consider making financial modifications if there has been a “substantial change of circumstances” in connection with either party’s finances or a child’s needs.  As with custody provisions, this legal standard cannot be set aside by any financial provisions of an order or agreement.  However, in addition to the “substantial change of circumstances” standard, which is relatively imprecise, there are two more concrete standards that apply to modifications of child support and maintenance or spousal support:  (a) the passing of three (3) years or more since the date of the last child support determination; or (b) a change of 15% or more in the income of the payor or recipient of support.  

Unlike the substantial change of circumstances standard, these latter two legal standards may be waived in an agreement – for example, where both parties want to minimize the chance of going back to court every few years and/or being obligated to share their financial information with a former partner on a yearly basis.  In such cases, the payor and the recipient of support are left with the less precise “substantial change of circumstances” standard, under which it may be unclear or debatable whether a life change passes muster such as to warrant a support modification.

Miscellaneous Future Payments: Divorce judgments, support orders, or agreements may require miscellaneous future payments to be made in addition to support payments.  If an agreement is involved, as is often the case, and a spouse claims an inability to make a payment required by an agreement, the first place to start is the section of the agreement that governs defaults and enforcement.  In certain agreements, the enforcement remedies set forth in the document are in addition to other enforcement measures available otherwise under the law.  In other cases, agreements are intended to replace the enforcement options available under the law.  

If there is no agreement in place and a future payment obligation is set forth in a divorce judgment or other court order, a payor who suffers a substantial change in circumstances could ask for a payment plan, but a failure to make a payment required by a court order creates a risk that the payor may be held in contempt if a court finds that they willfully violated a court order.

If you need help navigating your options after significant changes have taken place in your life or the lives of your children or your former partner, an attorney with our firm can guide you through the available alternatives as part of a consultation. 


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