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Custody Modification Warranted Due to Mother’s Irresponsible Behavior

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Does your ex-spouse have primary residential custody of your children? Does he/she relocate often or make rash, sporadic decisions that affect your children? In a recent Appellate Division case, Matter of Sherwood v. Barrows, the Court concluded that this kind of irresponsible behavior could warrant a modification of a pre-existing custody agreement.


In October 2011, the Court ordered joint custody of the parties’ seven-year- old child, with the Mother exercising primary residential custody and the Father exercising his parenting time every weekend. However, in May 2013, Father petitioned the Family Court for a modification of the existing custody order, asking the Court to award him sole custody. The Family Court granted the Father’s petition and the Mother appealed.


In a recent decision, the Appellate Division, Third Department affirmed the ruling of the Family Court, holding that a modification of custody was warranted. In order for a court to modify an existing custody order, the parent seeking the modification must demonstrate a sufficient change in circumstances since the entry of the prior order so as to justify a modification of that order to serve the child’s best interests.


Shortly after the October 2011 order, Mother ended her relationship with her cohabitant boyfriend and moved herself and the parties’ child out of his home and into a friend’s home. She then went to Tennessee for a modeling job and left the child with her friend for over two weeks. Upon learning of this, Father feared the Mother may try to permanently relocate and filed an Order to Show Cause asking the Court to prohibit the Mother from removing the child from New York. The Order was granted and later that day, Mother left with the parties’ child to Ohio.


The record shows that the Mother was aware that such an order was being sought and was imminent but nevertheless left the state. She claimed that she did not know the Order was actually granted until after she left. The Mother remained in Ohio with the child for approximately ten days, during which time she got married to someone she had recently met. After her ten-day vacation, she returned to New York and filed a petition with the Court to relocate to Ohio with the parties’ child in order to be with her new husband. While in Ohio, the child missed his visitation with the father and almost two weeks of school.


Shortly thereafter, Mother realized that her Ohio marriage was a mistake and moved back in with her New York boyfriend. She told the court that once her Ohio divorce was finalized she planned on marrying her New York boyfriend.


The court determined that the Mother’s sporadic and irresponsible behavior constituted a sufficient change in circumstances for the court to reevaluate the custody arrangement. Turning to the merits of the modification, the court found that the mother created instability in the child’s living arrangements and schooling, and disregarded the father’s visitation rights. The Father, on the other hand, had steady employment and had resided with his family for several years. The court concluded that the Father would be able to provide a more stable home environment for the child and awarded him sole custody of the parties’ child, with visitation to the Mother.


Every client should be informed of their parental rights and responsibilities regarding their children. If you have specific questions regarding your divorce judgment or custody agreement, want to ensure that you take the necessary time to properly address all of your issues and concerns, and would like to speak to a respected and experienced Long Island Divorce Attorney, contact the offices of Jay D. Raxenberg. Call (516) 491-0565 or toll free at (888) 543-4867.

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