If a custody order is already in place, how can I get it changed?
To change a custody or visitation order that is already in place, you need to file a petition to modify (change) the order at the courthouse that originally issued the order. Generally, for a judge to change your custody or visitation order, you need to show that there has been a substantial (significant) change in circumstances since the final order was made and that your proposed change would be in the best interest of your child.1
To begin the process of changing your custody order, you will need to fill out the forms for a “Petition for Modification of an Order of Custody/Visitation.” You can get the forms in the courthouse or you can file a custody or visitation modification petition online through the NY Courts website. We recommend getting a lawyer to represent you. Go to our NY Finding a Lawyer page for legal referrals. Even if you do not have a lawyer representing you, you may still want to have a lawyer check over the papers before you file them.
Note: Under New York state law, if a custody order was issued based on the fact that a parent was deployed by the military, the parent’s return from deployment automatically qualifies as a substantial change of circumstances. Upon the request of either parent, the judge must then decide whether it is in the child’s best interests to keep or change the custody order.2
1 See, for example, Grassi v. Grassi, 28 A.D.3d 482 (2nd Dept. 2006)
2 NY Fam Ct Act § 651(f); NY Dom Rel § 240(1)(a-2)
If there is a custody order in place, can I take my kids out of the state?
Generally, whether you can take your child out of the state for a short period of time may depend on many factors such as:
- what your custody order says about it (if anything);
- whether or not the custody case is still active/pending in the courts (which may mean that neither parent can remove the child from the jurisdiction of the court); and/or
- whether the trip will interfere in any way with the other parent’s visitation time, etc.
The custody order specifically may allow you to take your child out of the state (for a specific vacation, for example), may prohibit you from taking your child out of the state, or it may not address this issue at all. In some instances, the judge may require that you post a bond (money) or other security conditioned upon the return of the child to the state. If you are unsure whether leaving the state with your child temporarily is permitted, please talk to a lawyer who can advise you.
If you want to permanently move out of state or move within the same state to a distant location that would interfere with the other parent’s visitation schedule, or change the child’s school, for example, then you may have to get permission from the other parent or the judge depending upon the specifics of your custody situation. WomensLaw.org strongly suggests getting legal advice from an attorney first, even if the other parent agrees that you and the children can move.
Things to ask an attorney:
- If the other parent agrees you can move, you may want to ask an attorney whether or not you still need to formalize this change through the courts (by filing for a modified order) or whether some type of notarized statement signed by both parents with the details of the changes may be sufficient.
- If the other parent does not agree to the move and you have to ask a judge for permission, the judge will likely view your request to move as a request for a modification of the custody order. You should know that it could be difficult to get permission to move, especially if the other parent is active in the child’s life and strongly opposes the move.
In order to get permission to move from the judge, you must prove to the judge that moving will be in the best interest of your child. Generally, some factors that the judge will look at are:
- each parent’s reasons for wanting or opposing the move;
- the quality of the relationships between the child and each of the parents;
- the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent;
- the degree to which the custodial parent’s and child’s life would be economically, emotionally and educationally benefitted by the move; and/or
- how possible it is to preserve the relationship between the noncustodial parent and child through suitable visitation arrangements after the proposed move.1
For more information on modifying a custody order in general, please see the section entitled If a custody order is already in place, how can I get it changed?
1Tropea v. Tropea, 87 N.Y.2d 727 (Ct of App 1996)
Can a parent who does not have custody have access to the child’s records?
Maybe. Whether or not a noncustodial parent has access to his/her child’s school and medical records depends on what the custody order says. If you would like to limit the other parent’s access to your child’s records in order to keep your address confidential, it is important that you tell the judge this.
However, even if the noncustodial parent’s right to access records is limited by a court order, it could still be possible for him/her to access certain records under the Freedom of Information Law.1 If you are moving and want to keep your address confidential, you might want to talk to a domestic violence advocate before you move. S/he may be able to help you think through ways in which you can protect the confidentiality of your new address. To find a domestic violence advocate near you, check out the NY Advocates and Shelters page.
1 For more information, see How to request records from OCFS under FOIL on the NYS Office of Children and Family Services website