In order to modify an order of custody or visitation, the parent seeking the modification must prove BOTH
- that there has been a change of circumstances since the entry of the prior order of visitation or custody; AND
- that the modification is in the best interests of the child.
The Appellate Division, Fourth Department has ruled that the following factors must be considered when deciding a modification
- the quality of the home environment and the parental guidance the custodial parent provides for the child;
- the ability of each parent to provide for the child’s emotional and intellectual development;
- the financial status and ability of each parent to provide for the child;
- the relative fitness of the respective parents;
- the length of time the present custody arrangement has been in effect.
Keep in mind though that the Fourth Department only has jurisdiction in a limited portion of the State of New York (primarily Western New York). For those of us on Long Island, we are under the jurisdiction of the Appellate Division, Second Department and the Second Department has not delineated any specific criteria for the trial courts to consider in a modification. Regardless of the Department where a case is being heard, the Fourth Department’s factors provide insight as to what the trial courts may find to be important. Additionally, in any modification of visitation or custody case, providing continuity and stability for the child will be of great importance.