Many parents throughout New York will need to modify their child custody agreements. Unemployment has increased drastically due to coronavirus shutdowns. Co-parents are also negotiating the COVID-19 virus itself. In some cases, one parent contracts COVID-19 and becomes ill for several weeks. 

In other cases, one parent could be exposed to COVID-19 regularly at work, causing the other parent concern for their child’s safety. How should parents go about changing their custody agreement during these challenging times, even if they do not agree?

Will the Court Change Child Custody?

If you are new to co-parenting, or if you have never had to modify your child custody agreement, you may be wondering what the process is like for modifying your agreement. Your original child custody order is a binding legal document, and as such, any changes you want to make have to be signed off on by the court. While a modification is possible, the process can be difficult without the help of an experienced attorney. 

What Happens if My Co-Parent Does Not Want to Modify the Agreement?

Both co-parents will need to decide to modify the child custody agreement. When both parents cannot agree on the change that they need to make, one parent will need to file a Custody/Visitation Modification Petition in court. The petitioning parent will need to prove that they have experienced a significant “change in circumstances.” 

Who can Submit a Custody/Visitation Modification Petition?

New York courts are still accepting Custody/Visitation Modification Petitions. If there has been a “change in circumstances,” you can file a petition in Family Court. Only individuals who meet the following conditions can file a petition:

  • You and your co-parent have an order signed by a New York State Judge
  • You are the parent of the child or children mentioned in the child custody order
  • The child or children are not in foster care, 
  • You are on the child custody order

What is the Waiting Period for Modifying the Original Child Custody Agreement?

You will not be able to modify the original child custody agreement until a certain amount of time has passed since the judge entered the original order. Courts want to help children have as much consistency as possible. For this reason, many courts will not change child custody agreements too soon after a court enters the original order. 

In extreme circumstances, courts will modify a recently created child custody agreement, but judges tend to avoid too many changes that could be disruptive to children. For example, when a child is in imminent danger or harm without a modification, a judge will likely agree to modify an order.

What are the Most Common Reasons for Changing a Child Custody Order?

You will need to prove that there is a compelling reason to change your child custody agreement. After all, your original child custody agreement was in place because either you as co-parents agreed that the agreement was best or the court decided that the custody agreement was best. The following are common reasons for modifying a child custody order:

  • The circumstances of the child or parent have substantially changed since the judge entered the custody order
  • The parents have agreed to the change due to a change in location, change in finances, or change in health
  • Abandonment of one of the parents
  • Abuse or neglect that is causing an unsafe living condition
  • A health or medical condition arises
  • Remarriage
  • Job loss
  • Criminal behavior

How do I Prove That a Material Change Has Happened?

A substantial change is one that is significant enough to negatively affect the child’s life to such an extent that the current custody agreement is no longer in the child’s best interest. You will need to prove that a situation has significantly changed, necessitating a child custody modification. 

Under New York law, courts will only modify a child custody order when a material or substantial change happens that has a profound effect on the original agreement. The best way to show that a material change has taken place is to provide evidence of the change in circumstances. 

For example, if you are concerned about your child’s safety, you should write down every dangerous circumstance that has taken place. We recommend keeping a notebook and recording any incidents that have caused you concern so you can present them to the judge. 

What Happens When Abuse or Neglect Has Taken Place?

If you and/or your child are in serious danger, you should file for an order of protection. When abuse or neglect has taken place, the judge will require the parent who is petitioning for the modification to provide an affidavit. The affidavit should detail the allegation as well as all of the facts that prove the allegation, including:

  • Facts that show that the child is in danger by either parent, or
  • Facts that show that the child is in danger due to unsafe living conditions
  • That the modification of the child custody order is in the best interests of the minor child
  • Abandonment 


Will My Child Need to Testify Regarding the Child Custody Agreement?

When the children involved in the child custody agreement are age 12 or older, judges will often ask to hear from the children in chambers. They will ask the children to share their desires and talk about the reasons that one parent is requesting a modification of the child custody agreement. 

Do I Need to Hire an Attorney?

While you can file a petition for modification of a child custody order on your own, hiring an experienced lawyer will help you greatly. It is always best to speak to a family lawyer in New York who can assist you. The outcome of a child custody modification request will have a serious impact on your life and on the well-being of your children. 
Whether you are petitioning for the modification or you are opposing the modification, Thomas Weiss & Associates are here to help. Contact our Garden City laws firm as soon as possible to schedule your initial consultation.